Post-filing Activity May Create Privity Leading To Section 315(b) Dismissal, PTAB Litigation Blog
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Under Section 315(b), an IPR may be dismissed as time barred “if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent.” 35 U.S.C. § 315(b) (emphasis added). The petitioner bears the burden of establishing that no real parties in interest or privies were served with a complaint more than year prior to filing an IPR. RØDE Microphones, LLC v. Zaxcom, Inc., IPR2025-00231, Paper 33 (PTAB Aug. 21, 2025). “The determination of whether a nonparty is a real party in interest or privy is made as of the date of institution of a proceeding, even if the relationship between the nonparty and petitioner arises after filing but before institution.” Id.
