If you are monitoring adoption of post-issuance filings you may have noticed that five more IPR filings were filed on the second day of operation of the PTAB trials portal pursuant to the new IPR and CBM patent review options from the America Invents Act. The list of today’s filings is reproduced below:
4 IPRs were filed by Intellectual Ventures Management, LLC and one by Ariosa Diagnostics. This brings the total count to 13 pending petition matters (10 IPRs and 3 CBMs) on the petitions docket.
It is interesting to note different styles presented by the petitioners in the various petitions. Some rely more on declaration evidence than others. Some include substantial legal background for positions taken and some are more direct and pointed in arguing their positions.
It is also interesting to see the way that claim construction is being postured in these early petition filings. For example, for matters that are in more advanced stages of litigation petitioners have resorted to admissions by the patent owner and Markman decisions for proposed claim constructions. In a presentation to our local bar I predicted that PGR, IPR, and CBM would provide a kind of intermediate state of claim interpretation somewhere between BRI and a Phillips-type construction. I believe that is starting to take shape as evidence from both prosecution and district court is relied upon for claim construction proposals.
It is encouraging to see highly technical arguments being pursued in these early filings. For example, CBM (and PGR in general) may provide an attractive vehicle to challenge statutory subject matter and indefiniteness before the PTAB, as opposed to making these challenges in district court litigation. The patent community may well embrace these post-grant proceedings if it sees consistently high quality decisions by the PTAB.