In the wake of the new patent reform law, discovery will be a significant addition to administrative proceedings that review the validity of issued patents. A medical device company’s lawsuit against the patent office foreshadows likely fights about the scope of discovery in these proceedings, which are expected to spike under the new law.
Cordis Corp., a Johnson & Johnson subsidiary, sued the U.S. Patent and Trademark Office and its director, David Kappos, on Jan. 26 in the Eastern District of Virginia. At issue was the PTO’s refusal to let Cordis subpoena companies challenging its patents in an inter partes re-examination. The PTO has stated its policy is not to allow discovery in these review proceedings.
