CrowdStrike, Inc. v. GoSecure, Inc.

Informative decision only: persuasive authority, not binding precedent. Where a petitioner files two petitions against the same claims of the same patent chiefly to present two different constructions of a claim term (a broader and a narrower one), the Board abuses its discretion if it institutes both; it should construe the term and institute review of, at most, one petition. The Board may not rely on the patent owner's failure to "weigh in" on claim construction as a reason to institute both, and the proper course is to let the patent owner brief construction before the institution decision. No prior precedential or informative decision is directly addressed; the Director relies on the Consolidated Trial Practice Guide statement that one petition should be sufficient in most situations, and applies it to petitions advancing alternative claim constructions. A petitioner can no longer expect to obtain two instituted proceedings by presenting a broader construction in one petition and a narrower one in another, and should expect at most one instituted petition. A patent owner can oppose parallel petitions on the same claims, and its silence on construction in the preliminary response did not support institution of both; the Director also gave it an opportunity to brief construction on remand. The decision cites 35 U.S.C. § 316(b) through the Trial Practice Guide, and it cites no Federal Circuit, CCPA or Supreme Court authority. LEGAL TEST OR STANDARD: No multi-factor test is stated. The Director applied the Consolidated Trial Practice Guide position that "one petition should be sufficient to challenge the claims of a patent in most situations" and "multiple petitions by a petitioner are not necessary in the vast majority of cases." The Board abused its discretion by instituting two petitions on the same claims, and where two different claim constructions were advanced in two petitions it should construe the term and institute at most one. TRIGGERING FACTS: Petitioner filed two petitions on the same patent (9,954,872 B2), primarily to present a broader and a narrower construction of the term "association." The broader construction supported five obviousness grounds based on Capalik in IPR2025-00070, and the narrower construction supported three grounds based on Capalik and King in IPR2025-00068. The eight grounds overlapped significantly, and the Board instituted both petitions because Patent Owner had not "weighed in on" claim construction. KEY QUOTE: "Under these circumstances where two different claim constructions were advanced in two petitions, the Board should have construed the claim term and instituted review of, at most, one of the petitions." (Paper 25, p. 3) PRIOR PRECEDENT AFFECTED: No prior precedential or informative decision is directly affected. The Director follows the Patent Trial and Appeal Board Consolidated Trial Practice Guide (CTPG) 59 (84 Fed. Reg. 64,280 (Nov. 21, 2019)), which cites 35 U.S.C. § 316(b). The decision also mentions iRhythm Technologies, Inc. v. Welch Allyn, Inc., IPR2025-00363, Paper 10 (June 6, 2025), only in connection with Patent Owner's denied request to file supplemental briefs. PRACTICE TIP: Petitioners should not file parallel petitions to present alternative claim constructions of the same claims. Put the alternative constructions and grounds in a single petition within the word limit. Patent owners should object to parallel petitions in the preliminary response and state a position on construction.