The Baxter decision encourages accused infringers to come up with ways to delay litigation to give the USPTO more time to invalidate the patent, driving up litigation costs, said Charles Macedo of Amster Rothstein & Ebenstein LLP.
“It's saying that if you challenge long enough, the PTO may come to the rescue,” he said.
The case also illustrates a major problem with the patent system, since the courts found Baxter's patent to be valid while the USPTO found it to be invalid, Macedo said. Even if the Supreme Court were to take the case and rule that the court's decision that the patent was valid should have been final, it may not be able to ensure predictability in the patent system, he said.
“I think this case is more of a symptom than the disease,” he said.
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