When challenging a patent through IPR, petitioners may be tempted to offer an improved version of an argument that had been offered by the examiner during prosecution, using similar prior art but shoring up potential shortcomings of what came before. However, three decisions that the Board recently designated as “informative” illustrate that a petitioner that isn’t careful when reusing arguments may not be successful.
Topics: Prior Art
Last week, we discussed a recent IPR decision in which the Board—at the institution stage—was unpersuaded by copyright notices and evidence from the “Wayback Machine” suggesting dates of publication. Today we look at another recent decision, in IPR2014-01086, in which the Board was notably more forgiving regarding the public availability issue—at the final decision stage.