APPLICATION OF NHK/FINTIV ANALYSIS CONTINUES TO EVOLVE
The Board’s application of its precedential
NHK and
Fintiv decisions to deny petitions based on parallel litigation continues to develop. The Board recently designated two decisions as precedential as to the sections that relate to application of the
Fintiv factors:
Sotera Wireless, Inc. v. Masimo Corp., IPR2020-01019, Paper 12 (December 1, 2020) (precedential as to § II.A) The Board held that a Petitioner’s broad stipulation not to pursue invalidity arguments in the parallel litigation that it raised, or reasonably could have raised in the IPR, weighed strongly in favor of institution.
Snap, Inc. v. SRK Tech. LLC, IPR2020-00820, Paper 15 (October 21, 2020) (precedential as to § II.A) The Board held that a stay of the district court action through a final written decision in the IPR weighed strongly in favor of institution.