Failure To Make Full Sotera-Stipulation Contributes To Denial

In an increasingly rare exercise of discretion, the PTAB denied institution of inter partes review under Fintiv in Zhuhai Cosmx Battery Co., Ltd. v. Ningde Amperex Technology Limited, IPR2023-00587. The PTAB reasoned that the late stage of the parallel district court litigation, substantial investment by the parties in that proceeding, and the lack of countervailing considerations, favored the denial of institution.

In its decision to deny institution, the PTAB considered the Fintiv factors: (1) whether the court granted a stay or evidence exists that one may be granted if a proceeding is instituted; (2) proximity of the court's trial date to the Board's projected statutory deadline for a final written decision; (3) investment in the parallel proceeding by the court and the parties; (4) overlap between issues raised in the petition and in the parallel proceeding; (5) whether the petitioner and the defendant in the parallel proceeding are the same party; and (6)