Close Trial Date to Doom Parallel IPR Petitions?
Last September, the Patent Trial & Appeal Board (PTAB) found the advanced stage of a parallel district court proceeding weighed in favor of denying a follow-on, IPR petition. NHK Spring Co. Ltd. v. Intri-Plex Technologies Inc. That is, when weighing the equities of a follow-on petition under General Plastic, the competing litigation’s scheduled conclusion before the end of any potentially instituted IPR favored a discretionary denial of the petition under 35 U.S.C. § 314(a).
Since that time, the existence of late stage litigation proceedings has been raised in the context of first-filed petitions, and is beginning to gain traction there as well.