Aug 8, 2025

Matthew W. Johnson and Robert Levent Hergüner On June 25, 2025, Acting Director Coke Stewart released an informative decision vacating institution of inter partes review ("IPR") based on two petitions that were primarily filed to present two different constructions. Crowdstrike, Inc. v. GoSecure, Inc. , IPR2025-00068, IPR2025-00070, Paper 25 at 3 (PTAB June 25, 2025) ("Decision"). The Director held that the Board should have construed the claim term and instituted review of, at most, one of the petitions. The Board's Consolidated Trial Practice Guide clarifies that a single petition is sufficient to challenge a patent's claims in the vast majority of cases, but does allow for limited situations where two petitions are necessary. For instance, where a patent owner has asserted a large number of claims or when there is a dispute about priority date, two petitions are more likely to be appropriate. Here, Crowdstrike filed two petitions challenging the same GoSecure, Inc. patent. In the first petition, Crowdstrike claimed that the invention was unpatentable over three grounds based on a narrow construction of the term "association." IPR2025-00068. In the second petition, Crowdstrike claimed the invention was unpatentable over five grounds based on a broad construction of the term "association." IPR2025-00070. The Board allowed both petitions to proceed concurrently despite significant overlap. Crowdstrike argued that two petitions were required because it was unclear which interpretation GoSecure might use. GoSecure argued that two petitions were not appropriate because the number of claims challenged did not require two petitions and that Crowdstrike could have delayed filling until after their scheduled exchange of claim construction positions. The Board justified proceeding with both petitions based on the (1) large number of claims; (2) complex subject matter; and (3) potential that GoSecure might argue for a narrow construction of "association." GoSecure filed a request for Director Review of the Board decision to allow both petitions to move forward, arguing the Board abused its discretion in accepting two petitions against the same claims. Decision at 2. Crowdstrike argued that allowing both petitions to move forward was appropriate because each one proffered a distinct interpretation of a key term, which GoSecure had failed to themselves define. Id. The Director agreed that the Board abused its discretion. The Director found that each petition put forward a distinct interpretation of a term, and the proper path forward would have been for the Board to construe the key term in question and "at most" reviewed one of the petitions. Accordingly, the Director remanded the cases to the Board for them to determine which of the two petitions ought to be moved forward and allowing each party to submit briefing on the interpretation of "association." The Acting Director also noted that allowing two petitions to challenge the same claims under competing claim constructions in effect doubles the word count, which places a heavy burden on the Board and disfavored the patent holder. Takeaway: When competing claim constructions are central to an IPR dispute, the PTAB expects the Board to resolve the construction at institution, not permit multiple petitions based on alternative constructions. This informative decision reinforces that such arguments should be presented in a single petition, and multiple filings to hedge on claim interpretation are unlikely to be justified absent exceptional circumstances identified in the Board's Consolidated Trial Practice Guide. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.