Nathan Speed

Nathan Speed assists the firm in patent litigation and post-grant review matters. Nathan has experience litigating patent cases in federal district courts across the country, including in the District of Massachusetts, the Southern District of New York, the District of Delaware, as well as the United States International Trade Commission and the Court of Appeals for the Federal Circuit.

Recent Posts

Due Process: Just How Much Process is Due?

Posted by Nathan Speed on May 16, 2017

Nathan Speed

IPR proceedings are formal administrative adjudications subject to the procedural requirements of the Administrative Procedure Act (APA). One such requirement is that “[p]ersons entitled to notice of an agency hearing shall be timely informed of … the matters of fact and law asserted.” In Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064 (Fed. Cir. 2013), the Federal Circuit interpreted this to bar the PTAB from changing theories in the middle of an IPR trial without giving reasonable notice of and an opportunity for the parties to respond to the new theories. The court left unresolved, however, just how much notice and how much of an opportunity to respond the APA requires. A recent Federal Circuit decision gives some clues as to how the court will resolve those open questions.

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The BRI Standard: An Unconstitutional Taking of Private Property?

Posted by Nathan Speed on Apr 11, 2016

Nathan Speed

“Private property began the instant somebody had a mind of his own.” — E.E. Cummings

Among other rights, the Fifth Amendment guarantees that private property shall not “be taken for public use, without just compensation.” Both the Patent Act and the Supreme Court have classified patents as personal property. And in 2015, the Supreme Court made clear that the Takings Clause of the Fifth Amendment applies not only to real property but to “personal property” as well. Is the PTAB, then, by finding unpatentable more than 80% of claims instituted in an IPR proceeding, taking private property “without just compensation”? For four IP law professors, the answer is a resounding “yes.”

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Topics: Broadest Reasonable Interpretation Standard

When One Door to an IPR Proceeding Closes, Another Opens

Posted by Nathan Speed on Mar 31, 2016

Nathan Speed

“When one door closes another door opens; but we so often look so long and so regretfully upon the closed door, that we do not see the ones which open for us.”  — Alexander Graham Bell

The AIA prohibits the PTAB from instituting an IPR proceeding “if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent.” How, then, did Apple recently convince the PTAB to institute an IPR proceeding against two patents it was indisputably served with a complaint alleging infringement of more than five years earlier? 

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Topics: Petitioners, Patent Owners

Federal Circuit Orders the PTAB to Play Fair

Posted by Nathan Speed on Mar 16, 2016

Nathan Speed

Should the PTAB consider disclosures in an allegedly anticipatory reference that were identified for the first time during an oral hearing? No, according to the Federal Circuit, which ruled recently in a PTAB appeal that a patent owner was denied “notice and a fair opportunity to respond” in such a situation.

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Topics: Petitioners, Patent Owners

An NPE Uses an IPR to Take a Bite Out of Apple

Posted by Nathan Speed on Jan 28, 2016

Nathan Speed

When Congress passed the AIA, inter partes review was heralded by many as offering accused infringers a powerful tool to invalidate patents asserted by non-practicing entities. While anecdotally it appears that this prediction was correct, a recent IPR petition filed by an NPE against Apple suggests that NPEs may be developing strategies for using IPRs offensively.

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The PTAB Chooses Its Own Adventure

Posted by Nathan Speed on Dec 22, 2015

Nathan Speed

Does the PTAB have authority to institute a CBM proceeding on grounds that a petitioner did not raise? In the recent case of SightSound Technologies, LLC v. Apple Inc., the Federal Circuit said yes.

Apple petitioned for CBM review of two patents owned by SightSound. In its petitions, Apple identified two grounds for finding the claims unpatentable: (1) anticipation over a prior art computer system and (2) obviousness over a prior art article alone or in combination with certain other references.

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Board Tells Bass to “Go Fish”

Posted by Nathan Speed on Aug 25, 2015

Nathan Speed

In the much-anticipated first Board decision to address the merits of an IPR petition filed by the Coalition for Affordable Drugs and Kyle Bass, the Board yesterday denied institution in IPR2015-00720. The reason for the denial was simpler than some of the arguments advanced by the patent owner, and serves as a reminder to petitioners of their burden to demonstrate that relied upon references are prior art.

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Topics: Kyle Bass

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This blog is intended to promote thought and debate on developing areas of the law. The opinions, commentary and characterizations of cases provided on this blog are not legal advice and do not represent the opinions of Wolf Greenfield or its clients.