How Does The PTAB Exercise Discretion Under § 314(a)?

The Patent Trial and Appeal Board (PTAB) has the discretion to deny institution of any inter partes review (IPR). Such discretionary denial may be based on a variety of considerations, such as the existence of an ongoing district court litigation reviewing the validity of the same patent, because the PTAB considers a proceeding in parallel with the district court an inefficient use of resources. In Apple Inc. v. Fintiv, Inc., IPR2020-00019, Paper 11 (March 20, 2020) (precedential) ("Fintiv"), the PTAB set forth six factors for analyzing whether the circumstances of a parallel district court action warrants the PTAB's discretionary denial of institution. These factors are:

1. whether the court granted a stay or evidence exists that one may be granted if a proceeding is instituted;