Fintiv Factors

A set of factors considered by the United States Patent & Trademark Office in considering whether or not to stay an Inter Partes challenge to patent validity when there is a co-pending proceeding in Federal Court. The precedent was set in a decision of the Patent Trial and Appeal Board (PTAB). The Fintiv factors are:

  1. whether the court granted a stay or evidence exists that one may be granted if an Inter Partes proceeding is instituted;
  2. proximity of the court’s trial date to the Board’s projected statutory deadline for a final written decision;
  3. the investment in the parallel proceeding by the court and the parties;
  4. overlap between issues raised in the petition for Inter Partes review the parallel Federal Court proceeding;
  5. whether the petitioner and the defendant in the parallel proceeding are the same party; and
  6. other circumstances that impact the Board’s exercise of discretion, including the merits.

Fintiv is not applied to Section 337 proceedings before the US-ITC.

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