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James E. Quigley, left, Scott W. Hejny, right, Principals with McKool Smit.

The Federal Circuit recently dealt a blow to the Patent Trial and Appeal Board and, in particular, to the POP opinion process that has been frequently used over the past year to establish precedent for post-grant review proceedings. In overturning the Patent Trial and Appeal Board (PTAB) ruling in Proppant Express Investments, LLC et al. v. Oren Tech., LLC, the Federal Circuit panel in Facebook, Inc. v. Windy City Innovations, LLC took the extraordinary step of including “additional views” that questioned the authority of PTAB panels to do more than establish basic rules to carry out the statutory requirements of the America Invents Act (AIA). Moreover, the Windy City ruling reinforces the one-year statutory bar for filing petitions and closed a loophole from Proppant Express that enabled a party to join its own, earlier-filed petitions even after the expiration of the one-year statutory filing period.

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