Delayed Payment Proves Fatal For Cultec's PTAB Challenge

Under 35 U.S.C. § 315(b), a petition for inter partes review (IPR) may not be filed more than one year after the date on which the petitioner was served with a patent infringement complaint. Thus, a petition must meet all of the filing requirements of 37 C.F.R. 42.106 prior to the one year bar to be considered for institution.

An IPR petition under 37 C.F.R. 42.106 must: (1) include all required content as outlined in section 42.104; (2) be effectively served on the patent owner; and (3) be accompanied by the institution fee. If a petition fails to meet all of these requirements, no filing date will be accorded until the deficiencies are corrected. If such a failure is not remedied before the § 315(b) one-year bar kicks in, the petitioner may lose all chances for a PTAB challenge.