Post-Filing Activity May Create Privity Leading To Section 315(b) Dismissal

Under Section 315(b), an IPR may be dismissed as time barred "if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent." 35 U.S.C. § 315(b) (emphasis added). The petitioner bears the burden of establishing that no real parties in interest or privies were served with a complaint more than year prior to filing an IPR. RØDE Microphones, LLC v. Zaxcom, Inc., IPR2025-00231, Paper 33 (PTAB Aug. 21, 2025). "The determination of whether a nonparty is a real party in interest or privy is made as of the date of institution of a proceeding, even if the relationship between the nonparty and petitioner arises after filing but before institution." Id.