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PTAB Denies Institution Because of Pending Reexamination Considering Same Prior Art, PTAB Litigation Blog

December 2017

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In a recent decision, the PTAB exercised its discretion under 35 U.S.C. § 325(d) to deny institution of an IPR petition that presented the same prior art before the Patent Office in a pending reexamination. Fox Factory, Inc. v. SRAM, LLC, IPR2017-01439, Paper 7 (PTAB Dec. 8, 2017). Section 325(d) provides: “[T]he Director may take into account whether, and reject the petition or request because, the same or substantially the same prior art or arguments previously were presented to the Office.” 35 U.S.C. § 325(d).

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