Exercising its discretion, the Patent Trial and Appeal Board
(PTAB) denied institution of a petition for inter partes
review (IPR) because the petitioner previously had filed an IPR
petition challenging some of the same claims, had been aware of the
prior art references in the second petition for several months, and
had waited too long to file the second petition. Int'l Bus.
Mach. Corp. v. ZitoVault, LLC, Case No. IPR2016-01851, (PTAB,
Mar. 20, 2017) (Fishman, APJ).
ZitoVault sued Amazon alleging infringement of a patent directed
to cryptographic protocols. Amazon filed an IPR petition
challenging certain claims of the patent. ZitoVault then sued IBM
for alleged infringement of the same patent. IBM served invalidity
contentions, identifying several prior art references that had not
been asserted in the Amazon IPR. In the meantime, the PTAB
instituted the Amazon IPR on every challenged claim except claim
4.
