Insufficient Arguing Below Causes Forfeited Review Above, PTAB Litigation Blog
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Absent exceptional circumstances, the Federal Circuit will generally not consider arguments that a party failed to present in the tribunal under review. In Netflix, Inc. v. DivX, LLC, the Federal Circuit held that IPR petitioner Netflix waived its claim construction arguments because it did not sufficiently raise them before the Patent Trial and Appeal Board (“PTAB”). No. 22-1043 (Fed. Cir. Apr. 27, 2023).
Adam Cook a Summer Associate in Jones Day’s Pittsburgh Office contributed to this blog
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