By Levent Herguner and Matt Johnson – In a recent decision, the PTAB decided to institute inter partes review (“IPR”) of U.S. Patent No. 7,937,394 B2 despite Patent Owner’s claims that Petitioner engaged in gamesmanship and asserted references and combinations that were cumulative of each other. Comcast Cable Commc’ns, LLC v. Veveo, Inc., IPR2019-00290, Paper 15 (July 5, 2019). Patent Owner had contended that Petitioner relied on several prior art references that were at issue in the IPR petitions to prove invalidity in the ITC. However, the Board found there was no overlap with the ITC proceeding because (1) the prior art asserted in the ITC proceeding was different from those relied on in the grounds of unpatentability alleged in the IPR; and (2) the patent and claims involved in the ITC proceeding were different than those challenged in the IPR.
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