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ARTICLE · 14 JUNE 2021

Awkwardly Divided Petitions Triggers § 314(a) Denials

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In Fantasia Trading LLC v. Cognipower LLC, IPR2021-00070, Paper 21 (May 20, 2021), the Patent Trial and Appeal Board (PTAB) declined to institute inter partes review (IPR) where ...

United StatesIntellectual Property
Matthew Johnson
Matthew Johnson
Marlee Hartenstein
Marlee Hartenstein
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In Fantasia Trading LLC v. Cognipower LLC, IPR2021-00070, Paper 21 (May 20, 2021), the Patent Trial and Appeal Board (PTAB) declined to institute inter partes review (IPR) where Petitioner Fantasia Trading LLC failed to adequately justify filing multiple petitions.

The PTAB has the authority to determine whether to institute an IPR, including whether to consider more than one petition directed to a challenged patent.  The Trial Practice Guide sets the standard for petitioners that file more than one petition challenging the same patent.  Petitioner must file (1) a ranking of the petitions in the order in which Petitioner wishes the Board to consider the merits and (2) a succinct explanation of the differences between the petitions, why the issues addressed by the differences are material, and why the Board should exercise its discretion to institute additional petitions if it identifies one petition that satisfies Petitioner's burden under § 314(a).

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