Deadline IPR Service Fails to Bar Institution

Deadline IPR Service Fails to Bar Institution, PTAB Litigation Blog

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The PTAB recently granted institution of inter partes review despite the Patent Owner not receiving the petition for the proceeding until three business days after the statutory deadline. See Kahoot! ASA and Kahoot Edu, Inc., v. Aviel D. Rubin, IPR2023-00693, September 8, 2023. The deadline for requesting IPR is one year after the Petitioner or real party in interest is served with the complaint alleging infringement of the patent, and the Petition must include “copies of any of the documents required under paragraphs (2), (3), and (4) to the patent owner or, if applicable, the designated representative of the patent owner.” 35 U.S.C. §  312(a)(5), 35 U.S.C. §  315(b).  The USPTO rule states additionally that “service may be by Priority Mail Express or by means at least as fast and reliable as Priority Mail Express.” 37 C.F.R. § 42.105(b).

* Tova Werblowsky, a member of the New Lawyer’s Group in Jones Day’s New York Office assisted in the preparation of this blog.

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