Patent Owner Tip #11 for Surviving an Instituted IPR: Use It

Patent Owner Tip #11 for Surviving an Instituted IPR: Use It or Lose It (in the POR) | Mintz - Intellectual Property Viewpoints


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When faced with an instituted IPR, the Patent Owner should include all arguments it wishes to preserve for appeal in its Patent Owner Response (“POR”), including arguments that the Patent Owner believes are unlikely to succeed before the Board but may be attractive to the Federal Circuit. Otherwise, the argument will be deemed waived and unavailable in any subsequent appeal. That includes arguments made in the optional preliminary response which are waived if they are not renewed in the POR. After the POR phase, the Patent Owner is unlikely to have another opportunity, because the sur-reply is limited to responding to arguments made in the Petitioner’s reply.

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