A Dissenting Opinion On Weighing The Fintiv Factors, PTAB Litigation Blog

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The PTAB has explained that it has discretion to deny an IPR petition even if the petitioner has shown that it meets the statutory threshold for institution, which requires “that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” 35 U.S.C. § 314(a). Whether the PTAB should exercise that discretion in view of a parallel district court proceeding is determined by analyzing the precedential Fintiv factors. Apple Inc. v. Fintiv, Inc., IPR2020-00019, Paper 11 (PTAB Mar. 20, 2020) (precedential).  These factors are intended to “balance considerations such as system efficiency, fairness, and patent quality.”  Id. at 5.

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