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two petitions against the same patent “should be rare” and that it is “unlikely that circumstances will arise where
three or more petitions by a petitioner with respect to a particular patent will be appropriate.” TPG Update at 26 (emphasis added). In support of those statements, the PTAB explained that “one petition should be sufficient to challenge the claims of a patent in most situations” and that “[t]wo or more petitions filed against the same patent at or about the same time (e.g., before the first preliminary response by the patent owner) may place a substantial and unnecessary burden on the [PTAB] and the patent owner and could raise fairness, timing, and efficiency concerns.”
Introduction
The authors have recently proposed alternative analyses for the discretionary denial of IPR and PGR petitions involved in parallel district court litigation, as well as for the discretionary denial of serial petitions filed before the Patent Trial and Appeal Board (“PTAB”). The PTAB is also currently at a crossroads with yet a third similar but distinct issue the discretionary denial of
parallel petitions filed before the PTAB. “Serial petitions” refer to multiple successive petitions challenging a particular patent that are filed by the same or different petitioners, whereas “parallel petitions” refer to multiple contemporaneous petitions challenging a particular patent that are filed by the same (or a related) petitioner. Although the PTAB has promulgated an analytical factor-based framework for evaluating the discretionary denial of serial petitions, the PTAB has not done so for parallel petitions. Rather, the Board has simply issued general guidance th