While the Board recognizes that its rules do not require
petitioners to take "positions consistent with related cases
in different fora," a recent IPR decision illustrates the
risks a petitioner faces when it advances claim construction
positions before the Board that are inconsistent with its positions
in related district court proceedings.
In OrthoPediatrics Corp. v. K2M ,
Inc., IPR2018-01456 (P.T.A.B. Feb. 14, 2019), the
petitioner took the position that the Board need not construe any
term in the challenged claims. In related district court
proceedings, however, the petitioner had persuaded the district
court to narrowly construe certain terms in the challenged claims
as means-plus-function terms. The petitioner identified its
inconsistent claim construction positions in its petition, but
argued that it was not bound to its prior position given the
different claim construction standards utilized in the two fora at
the time of the petition's filing—broadest
