Fintiv Discretionary Denials Remain In Play

F5 Networks, Inc. (“Petitioner”) filed a Petition requesting an IPR.  WSOU Investments, LLC d/b/a/ Brazos Licensing and Development (“Patent Owner”) filed a Preliminary Response.  Here, the PTAB exercised its discretion under 35 U.S.C. § 314 to deny institution of the IPR based on an analysis of the Fintiv factors because of a parallel district court litigation, despite the Petitioner's Factor Four stipulation.

Under the first Fintiv factor, the PTAB considers whether the court granted a stay or whether evidence exists that one may be granted if a proceeding is instituted.  Here, the district court had recently denied Petitioner's motion to stay the case pending this and other IPR proceedings.  The PTAB found that this factor weighed towards denying institution.