Jeffrey Townes and Hongling Zou explore how the Patent Trial and Appeal Board reviews examiner errors, because although the board has recently denied inter partes review based on issues presented during prosecution, petitioners have little guidance on when examiner error merits IPR institution. These cases, however, almost exclusively focus on examples of when the board has exercised its discretion to deny institution. The board provides very few concrete examples in these decisions illustrating when it chooses not to use its Section 325(d) discretion based on a material error by the examiner.
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