PTAB Decides Concurrent IPR And PGR Petitions After Resolving Priority Date Dispute

In anticipating a dispute over whether the America Invents Act would apply, Petitioner MPL Brands NV, Inc. ("MPL") filed concurrent petitions for both inter partes review and post-grant review of U.S. Patent No. 11,932,441 ("'441 patent."). MPL Brands NV, Inc. v. BuzzBallz, LLC, No. PGR2024-00035, Paper 3, at 2. In support of the two filings, MPL cited to the PTAB Consolidated Trial Practice Guide for "the need for multiple petitions 'when there is a dispute about priority date.'" Id. at 4 (citing Consolidated Trial Practice Guide at 59 (Nov. 2019)).

Under the AIA, PGR is available to any patent that contains—or references any patent or application that contains—a claim with an effective filing date after March 15, 2013. AIA § 3(n)(1). Here, MPL argued that the '441 patent is an AIA patent; therefore, MPL asked the PTAB to institute PGR and deny its IPR petition as moot. MPL, No. PGR2024-00035, Paper 3, at 4. MPL argued that the AIA applied to the '441 patent for