PTAB Designates Informative Director Review Decision Vacating Institution of Two Petitions Challenging Same Claims

The Patent Trial and Appeal Board (PTAB) on Thursday designated as informative a Director Review decision in which Acting Director Coke Morgan Stewart said the Board abused its discretion by instituting two petitions for inter partes review (IPR) challenging the same claims.

According to the U.S. Patent and Trademark Office (USPTO), informative decisions provide the Board “norms on recurring issues, guidance on issues of first impression to the Board, guidance on Board rules and practices, and guidance on issues that may develop through analysis of recurring issues in many cases .” Decisions designated as precedential, on the other hand, constitute “binding authority concerning major policy or procedural issues.”

GoSecure sought Director Review of the PTAB’s decision to institute two petitions brought by CrowdStrike against claims of the same patent (IPR2025-00068 (Patent 9,954,872 B2) IPR2025-00070 (Patent 9,954,872 B2). The Board instituted both petitions because it said the patent owner had not weighed in on claim construction whereas CrowdStrike’s petitions advanced two different constructions of the term “association”. But Stewart noted that “the two petitions assert eight different grounds with significant overlap” and “[a]llowing Petitioner more than one petition to challenge the same claims under two different claim constructions effectively expands the permitted word count and places ‘a substantial and unnecessary burden on the Board and the patent owner and could raise fairness, timing, and efficiency concerns.’”

Instead, said Stewart, the Board should have construed the claim itself and then instituted one of the petitions at most. Now, the patent owner should be allowed to submit its claim construction arguments so the Board can make a determination and then decide whether to institute one of the petitions or not.

GoSecure also requested permission to file supplemental briefs raising arguments made in the recent Director Discretionary Denial decision in iRhythm Technologies, Inc. v. Welch Allyn, Inc. However, that request was denied because “Patent Owner failed to raise any basis for discretionary denial in its Preliminary Responses and because these proceedings are not subject to the Interim Processes for PTAB Workload Management,” which apply only to IPR and PGR proceedings in which the deadline for the patent owner to file a preliminary response has not yet passed.

The Director Review decision continues Stewart’s recent trend of patent owner-friendly decisions in PTAB proceedings.

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