Limited Fintiv Four Stip Unpersuasive, PTAB Litigation Blog

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The PTAB considers the six Fintiv factors to determine whether to exercise its discretion to deny institution of an IPR petition in view of a parallel litigation.  In that analysis, Fintiv factor four requires the PTAB to evaluate the overlap between issues raised in the petition and in the parallel proceeding.  See “Fintiv Factors,” PTAB Litigation Blog (Jul. 8, 2020).  With respect to this fourth factor, the PTAB provided guidance in Sotera Wireless, Inc. v. Masimo Corp., IPR2020-01019, Paper 12 (Dec. 1, 2020) (precedential), that denial of institution will be less likely where the petitioner eliminates the concern for duplicative efforts by “broadly” stipulating to waive “any ground raised, or that could have been reasonably raised” in the parallel proceeding.  See “Stipulation Roadmap for Fintiv Factor Four,” PTAB Litigation Blog (Dec. 30, 2020).  A narrower stipulation, however, may not receive the same consideration in the factor four analysis.

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