The Patent Trial and Appeal Board (PTAB) has granted institution of an inter partes review (IPR), even though the Petitioner did not serve the Patent Owner with the petition for the proceeding until three business days after the deadline dictated by statute. The decision was reported in the case of Kahoot! ASA and Kahoot Edu, Inc., v. Aviel D. Rubin, IPR2023-00693, on September 8, 2023.
In accordance with the law, the deadline to request an IPR is one year after the Petitioner or a real party in interest has been served with a complaint alleging infringement of the patent. Also, the petition must include “copies of any of the documents…”, according to the case reviewed by Jones Day.
In this particular case, the PTAB appears to have made an exception to the statutory timeline. Despite the late service of the petition, the board decided to grant institution of the IPR. This could potentially create a precedent that allows for some flexibility with regards to statutory deadlines in IPR cases, subject to the discretion of the PTAB.
Legal professionals, especially those engaged in patent infringement situations, should closely monitor this development and consider its potential implications. Nonetheless, it is generally advisable to adhere to all statutory deadlines to avoid complications and uncertainty regarding the institution of an IPR.