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The potential utility of reexamination in the context of patent litigation has caught the attention of litigants, commentators, and the courts. However, concurrent litigation and reexamination proceedings proceed independently. Thus, in any given situation involving such proceedings, there is the possibility that the Federal Circuit will encounter issues in appeals from determinations of the district court and the U.S. Patent and Trademark Office relating to the scope or validity of the same patent claims, which issues have traveled to the court on separate tracks. And, because the courts and the USPTO approach claim construction and validity determinations differently, they can reach different conclusions even on the same evidence.Accordingly, there is the possibility of divergent outcomes in the district court and USPTO. So what happens when the Federal Circuit is faced with (arguably) conflicting USPTO and district court determinations? In recent years, we’ve begun to receive relevant guidance, as the Federal Circuit has been asked to weigh in and decide “whose rules rule” in a variety of circumstances. This paper summarizes what we’ve learned in the process, and identifies some questions that remain for decision.

Whose Rules Rule? Federal Circuit Review of Divergent USPTO and District Court Decisions