XpresSpa Group Inc (XSPA)

[Patentinvestor]

BPLA AMICUS: I love the exclamation point (!) -



The BPLA respectfully urges this Court to grant I/P Engine’s petition for en
banc review. Although the per curiam decision is designated as non-precedential,
it has nonetheless created discussion in patent law circles for this reason: the panel
majority appears to have taken the determination of patent validity into its own
hands, so to speak, acting as USPTO examiner, trial judge, and jury, rather than as
a court of review. First, in holding the patents to be obvious, even though the jury
specifically found the opposite, the panel majority appears to have substituted its
own hindsight judgment for the jury’s specific findings, based on expert testimony,
as to how one of ordinary skill in the art would have viewed the claimed inventions
against the prior art. Second, in a concurring opinion, one panel member
suggested that the patents should have been invalidated under 35 U.S.C. § 101,
even though the defense never argued the point! This apparent willingness to
search for new invalidity grounds not argued or raised previously veers from this
Court’s role as a court of review and, in effect, devalues the trial, the jury, and the
advocacy system.