Yesterday, U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal issued a precedential sua sponte Director Review Decision in Code200, UAB v. Bright Data, Ltd., IPR2022-00861 and IPR2022-00862 Paper 18 (Aug. 23, 2022), clarifying the application of Gen. Plastic Indus. Co. v. Canon Kabushiki Kaisha, IPR2016-01357, Paper 19 (PTAB Sept. 6, 2017) in denying decisions to institute inter partes review (IPR) proceedings. The Patent Trial and Appeal Board (PTAB) denied institution of the two IPRs on July 25, 2022, explaining that the General Plastic factors weighed in favor of denial. Specifically, addressing Factor 1, which asks “whether the same petitioner previously filed a petition directed to the same claims of the same patent,” the PTAB said that the fact the Board had not evaluated the similar patentability challenges brought by the petitioner on the merits did not outweigh the petitioner’s failure to offer a stipulation agreeing not to raise the grounds asserted in the present IPRs in related district court litigation as per Sand Revolution II IPR2019-01393.
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