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Expanded Panel Ratifies Post-Petition Disclaimer As Legitimate CBM Eligibility Strategy, PTAB Litigation Blog

October 2017

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An expanded panel at the PTAB has found that post-Petition claim cancellation is a legitimate strategy for patent owners to avoid CBM jurisdiction. In deciding petitioner’s Institution Decision Rehearing Request in Facebook, Inc. v. Skky, LLC, Chief Judge Ruschke exercised his discretion to expand the panel to provide guidance regarding the effect of disclaimers filed between Petition filing and institution on CBM review eligibility. The expanded panel found that eligibility is decided at the time of the Institution Decision, not Petition filing, confirming the decision not to institute trial.

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