Sep 22 2020
The “NHK-Fintiv rule” originates from two precedential PTAB decisions, in which the PTAB applied the rule and then exercised its discretion to deny institution of the IPR trials. The NHK-Fintiv rule has now been applied by the PTAB in two dozen cases, providing a small but potentially informative statistical sample size. In view of the impact that this now precedential rule has had on PTAB practice in the last few months, this discussion endeavors to provide a high-level statistical analysis of how the PTAB has sought to balance the six NHK-Fintiv factors in reaching its post-Fintiv institution decisions.