U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal today issued a second Director Review decision correcting the Patent Trial and Appeal Board (PTAB) on its approach to the “compelling merits” analysis outlined in her June 2022 Guidance Memo. In AviaGames, Inc. v. Skillz Platform, Inc., IPR2022-00530, Vidal vacated the PTAB’s denial of AviaGames’ petition to institute IPR of certain claims of Skillz’s U.S. Patent 9,479,602 B1. She explained that the Board’s determination to deny the petition following a Fintiv analysis was improperly based on the district court’s judgment of invalidity under 35 U.S.C. § 101, since that is “a statutory ground that could not have been raised before the Board” and “does not raise concerns of inefficient duplication of efforts or potentially inconsistent results between the Board and the district court.”

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