Incorporation by Reference Not Allowed in Inter Partes Review

Given the Board’s repeated admonitions regarding the speed and efficiency of inter partes review proceedings, it comes as no surprise that the Board has consistently rendered decisions that strengthen and reinforce the strict time lines and page limits of the proceedings.  To that end, in PCT Int’l, Inc. v. Amphenol Corp., IPR 2013-00229 (Paper 17) (December 24, 2013), the Board thwarted Patent Owner’s attempt to “incorporate by reference” its Preliminary Response into its later Patent Owner response.

37 CFR § 42.6(a)(3) – Incorporation by reference; combined documents.  Arguments must not be incorporated by reference from one document into another document.  Combined motions, oppositions, replies, or other combined documents are not permitted.

Pointing out that Rule 42.6(a)(3) prevents parties from circumventing page limitations, the Board stated that it would only consider arguments properly presented in the Patent Owner’s Response, not any arguments that were merely incorporated by reference into the preliminary response.

Attorney Argument in Preliminary Response Continues to be Trumped by Expert Evidence from Petition

DroppingChallenging two patents with a common parent application, Butamax Advanced Biofuels was able to get 28 challenged claims of one Gevo patent and 18 challenged claims of a second into separate trials for inter partes review, in cases styled as Butamax Advanced Biofuels LLC v. Gevo, Inc. (IPR2013-00214 and IPR2013-00215), involving U.S. Pat. Nos. 8,304,588 and 8,283,505.

The duo of patents both relate to a “method for recovering C3-C6 alcohols, including isobutanol, from dilute aqueous solutions, such as fermentation broths.”

The Board in both cases dealt with a handful of preliminary issues before delving into the analysis. The first issue regarded whether DuPont should have been named as a real party-in-interest by Patent Challenger. The Board rejected Patent Owner’s argument that inter partes review should be barred because of this issue, reasoning that the mere fact that DuPont and Butamax (who have board of directors’ members in common, among other tangential ties) share a common interest in the two patents does not necessarily make DuPont a real party-in-interest.  The real party-in-interest inquiry is “fact-dependent” and Patent Challenger simply had not set forth persuasive evidence of DuPont’s ability to fund or direct the proceeding.  IPR2013-00214 Order at 4.  This issue is, of course, challenging for a Patent Challenger to prove in light of the Board’s high burden to obtain “additional discovery” that would help provide the persuasive facts for this fact-dependent inquiry.

The Board then rejected Patent Owner’s argument that inter partes review should be barred because the references relied upon and the arguments utilized were previously considered by the Examiner. In discounting Patent Owner’s argument, the Board simply stated that Patent Challenger’s arguments had merit. IPR2013-00214 Order at 5.

To conclude the preliminary matters, the Board rejected Patent Owner’s argument that expert testimony should be discredited because it was provided by an expert with a business relationship with DuPont (an alleged unnamed real party-in-interest), citing the expert’s qualifications and persuasive testimony. IPR2013-00214 Order at 6.

The Board’s analysis of the merits of the petitions contained a few interesting points.  For example, in the 214 proceeding, the Board deemed the preambles of the challenged claims limiting, especially given that a portion of the preamble provided antecedent basis support for certain of the dependent claims. IPR2013-00214 Order at 9.

In the 215 proceeding, the Board considered Patent Owner’s argument that, by modifying one prior art reference’s disclosed process by including as step from another reference, the fundamental principles of operation of the process would be changed.  Thus, per Patent Owner, the proposed modification would render the prior art invention inoperable.  IPR2013-00214 Order at 11.  The Board discounted this argument based on the rational that Patent Owner’s “argument improperly is based on what each reference teaches separately, and not on the teachings of the combined references.”  Id.  More specifically, the Board relied on the Federal Circuit’s decision in In re Keller, 642 F.2d 413, 425 (CCPA 1981) to not require “bodily incorporation” of a secondary reference into a primary reference.

This decision shows why there is a growing trend in IPR practice to waive the Patent Owner Preliminary Response or, at the least, to not focus on the merits of, for example, an obviousness analysis.  Time and again in the Board’s decision, it discounted the attorney argument of Patent Owner and referred, instead, to the declaration testimony of Patent Challenger’s expert.  Clearly, expert evidence, if properly presented, is provided great weight, as compared to mere attorney argument (and no expert testimony is, of course, allowed in such a Preliminary Response).  As such, Patent Owners are reconsidering the forecast of arguments that could be made in the formal response to the petition, when expert testimony may be provided, given that the Board is not giving much weight to those arguments in the Preliminary Response.

60 for 65: Corning Succeeds On Three Additional IPR Petitions

Corning extended its winning streak in its challenges of patents owned by DSM IP Assets (DSM) in three related cases styled as Corning Inc. v. DSM IP Assets B.V. (IPR2013-00043, IPR2013-00044, and IPR2013-00047), involving U.S. Pat. Nos. 7,171,103; 6,961,508; and 6,438,306 respectively.

All three patents relate to optical fibers having multiple-layered, radiation-curable coatings as well as to the compositions of the radiation-curable coatings. The coatings act to confer “microbending resistance” and specifically, the ’103 and ‘508 patents are directed to coated optical fibers in which the coating provides “good microbending resistance” and “a high cure speed.” Further, the ‘306 patent is specifically directed to a coated optical fiber with a cured resin coating which does not restrict the mechanical properties of the optical fiber.

In all three cases, the Board began with a short claim construction analysis. In general, the Board either adopted Patent Challenger’s constructions, or deemed that claim construction was unnecessary at this stage, without providing any meaningful analysis supporting its decisions.

Then, the Board turned to an overview of the petition. In all three cases, Patent Challenger asserted that the subject matter in the challenged claims was only allowed during prosecution because many of the claim limitations were in the form of inherent properties not explicitly set forth in the prior art. To support this position, Patent Challenger relied on the expert testimony of two of its own scientists, one of which reproduced prior art compositions to test them for inherent properties, and the other of which vouched for the validity of testing.

Patent Owner objected to these inherency arguments, arguing that (a) Patent Challenger’s anticipation argument actually required multiple references to explain the testing being conducted, (b) the petition should be denied due to Patent Challenger basing its challenges on ex post facto testing, (c) a person of ordinary skill in the art would not have been motivated to combine the prior art references cited by Patent Challenger to produce the claimed invention, nor would they have had a reasonable expectation of success, and (d) in the cases involving the ‘508 and ‘306 patents, Patent Owner argued that Patent Challenger deviated from the prior art teaching in its formulations and testing, even in one case calling Patent Challenger’s methods “fatally flawed.”

Among the interesting aspects of the Board’s decision was its analysis of whether a particular prior art reference inherently possessed a material limitation of the challenged claims.  To that end, Patent Owner argued that Patent Challenger was relying on a combination of references in its anticipation challenge.  The Board disagreed, finding that Patent Challenger may rely on evidence extrinsic to the primary prior art reference to show that the primary reference inherently possesses a particular property, “so long as the extrinsic evidence establishes that the property is ‘necessarily present in the thing described int he reference, and that it would be so recognized by persons of ordinary skill.'” citing Continental Can Co. USA v. Monsanto Co.948 F.2d 1264, 1268 (Fed. Cir. 1991).  00043 Order at 12.

As in previous Corning decisions, the Board also declined to adopt Patent Owner’s argument that ex post facto testing cannot be used in an obviousness analysis.  Because Patent Challenger was not using the testing to provide the rationale for combining prior-art references to reach the claimed subject matter, the testing was proper evidence in the obviousness analysis.  See, e.g., 00043 Order at 18-19.

It is worth noting that this is an interesting decision for a reason related to the decision whether or not a Patent Owner should file a Preliminary Response to the Petition.  Momentum is certainly on the side of not filing such Preliminary Responses, given the overwhelming rate of Petition grants to date.  That is, given the low likelihood that such a response will be successful, there is little incentive to a Patent Owner to explain its positions early in the proceeding.  In this case, while the Board ultimately granted the IPR trial, Patent Owner was given a detailed exposition of the weaknesses in its arguments, as currently viewed by the Board.  This will give Patent Owner a detailed road map for expert testimony and argument in its formal response in an attempt to rebut the challenge grounds.

In summary, the Board granted the petition of Patent Challenger as to 18 of 18 challenged claims in the ‘103 patent, 22 of 22 challenged claims in the ‘508 patent, and 14 of 14 claims in the ‘306 patent based on obviousness and anticipation grounds, solely obviousness grounds, and solely anticipation grounds, respectively.

33 and 34 for 35: Two Inter Partes Review Trials Instituted Where Patent Waived Preliminary Response

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Kyocera is a believer in the new inter partes review proceedings, having filed three IPR petitions.  Its first two attempts have been met with initial success as it obtained favorable decisions (HERE and HERE) from the PTAB in instituting inter partes review trials against two Softview LLC patents. The cases are styled Kyocera Corporation v. Softview LLC (IPR2013-00004 and IPR2013-00007), involving US Pat. Nos. 7,831,926 and 7,461,353.

As noted in our Report on the first six months of inter partes review proceedings, just 6% of Patent Owners have decided to waive their right to file a Preliminary Patent Owner Response.  Softview is a big part of that statistic, having decided in both of these proceedings to not file a Patent Owner Preliminary Response.  Interestingly, it does not appear that Softview waived the response to speed the proceedings – instead, it just let the deadline for filing its preliminary response lapse without filing anything.  There is nothing in the Board’s decisions, however, suggesting that the waiver impacted the Board’s consideration.

The ‘926 and ‘353 patents are drawn to the scalable display of Internet content, e.g., HTML based content, cascade style sheets (CSS) and XML, on mobile devices by enabling the content to be rendered, zoomed and panned for better viewing on small screens and standard monitors. A client side viewer receiving the Internet content has an Internet browser and uses the simple vector format (SVF) originally designed to handle common computer-aided design (CAD) file formats to describe the current web content. Translation of the content into a scalable vector representation can be done by a third party proxy service, the content provider’s web site, or the client.

Patent Challenger referred to Patent Owner’s proffered claim constructions from co-pending litigation in its Petitions – arguing that such constructions were reasonable.  The Board agreed. It seems clear, in this instance, that Patent Owner took a broad view of the scope of the patent claims before the federal district court and Patent Challenger is using that broad scope to its advantage in the inter partes review proceeding.

The Board then proceeded to go through a workmanlike obviousness analysis using an element by element approach. In the end, the Board granted trial on all challenged claims in both cases, using obviousness grounds that involved a combination of up to four references in some instances. It is not surprising, given that Softview waived its preliminary response, that no key disputes were discussed in the Board’s decisions that bear mentioning here.  If anything, the Board’s decisions were more detailed in its obviousness analysis than most; most likely reflecting the fact that Patent Owner did not “concede” any limitations in a preliminary response.

24 for 25: Inter Partes Review Trial Instituted in View of Waived Patent Owner Preliminary Response

iStock_000016813098XSmallIn only the second decision to initiate an IPR trial on ALL proposed grounds, the Board granted a petition filed by Research in Motion in the IPR styled Research In Motion Corp. v. Mobilemedia Ideas LLC (IPR2013-00016), involving US Patent No. 6,441,828. The trial involves a smaller than average number of claims and grounds, as the decision was granted for all 5 challenged claims based on all 10 challenged grounds.

The subject matter of the ‘828 patent involves an apparatus (e.g., an electronic picture frame) for displaying a digital image in a normal direction regardless of whether the apparatus is placed with the shorter or longer side down.

The Board spent a considerable amount of the decision discussing claim construction, starting with a finding that the preamble of the only independent claim (Claim 6) is not limiting because it did not add any further limitation that is not already present in the body of the claim. Order at 6.  Further, the Board found that the preamble of Claim 6 only recited an intended use for the claimed apparatus (“for displaying image data read from a recording medium.”).  Id.

The Board then proceeded to address the Patent Challenger’s means-plus-function claim limitation positions, noting that because the Patent Owner did not file a patent owner preliminary response, the Board did not have the benefit of ascertaining the Patent Owner’s position on the claim construction of the means-plus-function limitations. Order at 7. The Board stated that the Patent Owner would have an opportunity to present its construction in the patent owner response and was clear to remark that the claim construction positions it was taking in its Order were made solely to determine whether to institute the trial.  The Board then went on to identify specific structure for each of the means-plus-function limitations, often agreeing with the Patent Challenger’s position.

The Board proceeded to analyze each of the Patent Challenger’s anticipation and obviousness grounds, finding a reasonable likelihood of prevailing in each instance. The Board again made subtle references to the waiver of the patent owner preliminary response in stating more than once that the Patent Challenger’s explanations of its invalidity contentions were “unrebutted.” Order at 22, 25.

In the end, it was a total success for Patent Challenger at this stage of the proceeding. Patent Challenger’s strategy of focusing on a small number of grounds was successful, as it avoided the quandary many other Patent Challengers have faced – the Board denying cumulative or duplicative grounds. Although it was not apparent how crucial the waiver of the patent owner preliminary response was in this decision, the Board’s repeated emphasis of “unrebutted” challenge grounds indicates that patent owners should strongly consider the advantage of rebutting a Patent Challenger’s argument at an early stage of the proceeding to give the Board the opportunity to potentially narrow the trial.

Preliminary Statement Must Rebut Statement of Facts in Petition

Tucked within a fairly innocuous PTAB Order authorizing Patent Owner to file a motion seeking additional discoveryNeedle in a haystack was an interesting excerpt that should be noted regarding the content of a Patent Owner Preliminary Response. The Inter Partes Review at issue is styled as Apple Inc. v. Achates Reference Publishing, Inc., IPR2013-00080, involving US Patent No. 6,173,403.

The issue that drew my attention in this Order related to what requirement, if any, a Patent Owner has to respond to a statement of facts that is included in a petition. The Trial Practice Rules, as proposed, included a requirement that a petition must contain a statement of material facts. In the final rules, however, that requirement was dropped in favor of a stance that such statements of material facts are optional. Seemingly left unanswered in the Rules is the question of what must Patent Owner say in its Preliminary Response in opposition to any statement of material facts included in a petition.

That question was answered by the Board in above-referenced “Order Authorizing Motion for Additional Discovery.” In that Order, the Board noted that the issue arose by virtue of an inquiry by Patent Owner during a status conference call. Patent Owner requested guidance on whether its preliminary response must respond to the statement of facts provided with Patent Challenger’s petition. The Board instructed that, “[s]hould Patent Owner choose to file a preliminary response…Patent Owner must respond to Petitioner’s statement of facts by admitting or denying each fact, or stating that the fact cannot be admitted or denied based on information available at this point in time.” Order at 3. Notably, this response does not count against the page limit for a preliminary response.

You just never know where a nugget of PTAB guidance might be found.

14 for 15: Another Inter Partes Review Trial Instituted

SONY DSCSuddenly, the 92% rate at which the Patent Office granted petitions seeking inter partes reexamination seems kind of low.  While the standard for initiating an inter partes review is ostensibly higher (reasonable likelihood) than the standard that was required to institute an inter partes reexamination (substantial new question), the rate at which inter partes review trials are being instituted does not reflect any such difference.  The Board instituted the fourteenth out of fifteen trials in Ranbaxy Labs, Ltd. v. Vertex Pharm., Inc. (IPR2013-00024), involving US Patent No. 5,436,989.  The Board initiated this trial based on two of the four proposed grounds and against all twelve of the challenged claims.

The subject matter of the ‘989 patent includes prodrugs of HIV aspartyl protease inhibitors, including pharmaceutical compositions and methods of treatment.  In general, the advantages of the prodrugs of the ‘989 patent included higher aqueous solubility, higher oral bioavailability, and decreased pill burden/increased patient compliance.

The first chemical trial instituted by the Board, Ranbaxy also is an outlier because it is one of the few decisions by the Board instituting a trial wherein claim construction was not a central part of the Board’s decision.  Perhaps the Patent Owner was simply saving a claim construction dispute for later in the proceeding, but the Board remarked that “the terms recited in the claims of the ‘989 Patent do not appear to be in dispute.”  Order at 4.

Instead, the Board’s decision turned on the issue of whether the claimed chemical compound was obvious, and used the test for obviousness in a chemical case articulated in Otsuka Pharma. Co., Ltd. v. Sandoz, Inc., 678 F.3d 1280, 1292 (Fed. Cir. 2012).  More specifically, the correct inquiry was articulated as “whether the prior art would have supplied one of ordinary skill in the art with a reason or motivation to modify a lead compound to make the claimed compound with a reasonable expectation of success.”  Order at 7.

Starting with the “Reason to Modify” prong of the Otsuka test, the Board undertook a detailed analysis of the state of the art at the time the ‘989 patent was filed and determined that a shortcoming of protease inhibitors, low solubility, was well-known in the art. The Board gained this perspective from a review of the art of record in this inter partes review.  Because one of the prior art references taught the addition of a solubilizing group known to improve solubility of a low solubility compound, the Board found sufficient “reason to modify.”

Turning to the “Reasonable Expectation of Success” prong, the Board found that the prior art discloses a prodrug similar to the claimed compound.  Further, the Board cited to the ‘989 patent description to support its finding that there was merely insignificant differences between the prior art and claimed methods.  As such, the Board found that the similar structure and disclosure of similar solubility problems associated with that structure would have provided a reasonable expectation of success in improving solubility using the methods taught in the prior art.  Order at 13.

The Board relied upon Patent Challenger’s expert’s testimony in coming to its conclusions.  It being improper, of course, for Patent Owner to introduce any counter-testimony at this stage, there was no evidence to dispute the expert’s conclusion.  Patent Owner’s day, in that regard, will come.  In any event, the two Otsuka prongs having been met, the Board instituted the trial against all challenged claims.

Finally, it is worth noting an interesting point raised by the Board regarding the qualifications of Patent Challenger’s expert.  Specifically, the Board stated that “Patent Owner had not directed us to any reason to doubt Dr. Fisher’s qualifications to testify as an expert in the field of HIV aspartyl protease inhibitors.”  Order at 6.  The remark is interesting because the Board has previously shown a reluctance to consider evidentiary issues at this stage of the proceeding and because an expert’s qualifications are not among the items listed in the Trial Practice Guide as proper subject of a Patent Owner Preliminary Response.

Board Denying Requests for Filing a Reply to Patent Owner Preliminary Response

As could be expected, the parties to the first wave of inter partes review proceedings are probing the limits of the Trial Practice Rules and gauging where the Board will allow leeway, and where it will not.  One issue that has come up on a number of occasions is whether a Patent Challenger can obtain leave to file a reply to a Patent Owner Preliminary Response – the answer is no.

37 CFR §42.107 affords Patent Owner an opportunity to file preliminary response to the petition for the limited purposes of setting forth the reasons why no inter partes review should be instituted.  The Trial Practice Guide expands upon this general framework and instructs that potential patent owner preliminary responses include: (1) the petitioner is statutorily barred, (2) the references cited are not in fact prior art, (3) the art lacks a material limitation of all independent claims, (4) the art teaches or suggests away from a combination advocated by petitioner, and (5) petitioner’s claim interpretation is unreasonable.  77 Fed. Reg. 48764 (Aug. 14, 2012).

Neither Rule 107, nor any other provision in the Patent Office rules, provides for a reply to a patent owner preliminary response.  As such, just as is required for any other action not authorized by the rules, Patent Challengers have, on occasion, sought authorization to file replies to such response, presumably worried that issues raised in the preliminary responses may cause the Board to decline to institute an IPR trial.  In general, this course of action has been unsuccessful, with the Board relying upon the lack of authorization for such replies within the rules, but also the fact that, to the extent an incorrect version of the facts results in an unfavorable decision, the Patent Challenger has the ability to seek, as a matter of right, a rehearing of the issue.  More can be learned from reviewing the details of a few of these decisions:

In Vestcom Int’l, Inc. v. Grandville Printing Co. (IPR2013-00031), the Board denied a request to file a reply to patent owner’s preliminary response.  The basis for the motion by Patent Challenger was that the preliminary response by Patent Owner raised unforeseen issues concerning collateral estoppel arising from a previous reexamination.  Because the Rules do not allow for a reply to a Patent Owner Preliminary Response, and further, that if there are errors in the Board’s ultimate decision, Patent Challenger can request rehearing, the request to file a reply was denied.

As previously discussed HERE, in the inter partes review styled as Nissan N. Am., Inc. v. Collins, et al. (IPR2012-00035), the Board chided an attorney for sending an ex parte email to the Board seeking to comment on the preliminary response filed by Patent Owner.  The Board denied Patent Challenger the right to file a reply, and further allowed Patent Owner a five page brief to respond to the improper argument that was contained in the improper email to the Board.

Lastly, in Motorola Solutions v. Mobile Scanning Tech., LLC (IPR2013-00093), the Patent Challenger has sought leave to file a reply to Patent Owner’s Preliminary Response, but no decision has yet been rendered by the Board.  If history is a guide, however, Patent Challenger should be planning to seek recourse, if at all, via a request for rehearing.

Non-Infringement DJ Action Does Not Preclude Inter Partes Review

As previously reported, Patent Owner in the inter partes review styled as Ariosa Diagnostics v. Isis Innovation Ltd. (IPR 2012-00022) earlier sought authorization to file a motion challenging the standing of Patent Challenger to bring the IPR petition.  The Board held that such issues could be addressed in the Patent Owner Preliminary Response and, therefore, denied Patent Owner’s request for authorization at an early stage of the IPR.

35 USC §315 – (a) Infringer’s civil action.  (1) Inter partes review barred by civile action.—An inter partes review may not be instituted if, before the date on which the petition for such review is filed, the petitioner or real party in interest filed a civil action challenging the validity of a claim of the patent…(3) Treatment of counterclaim.—A counterclaim challenging the validity of a claim of a patent does not constitute a civil action challenging the validity of a claim for purposes of this subsection.

Since that ruling, however, Patent Owner made its argument that Patent Challenger lacked standing to bring the inter partes review in its Preliminary Response.  Further, on February 12th, the Board denied Patent Owner’s request and ruled that the Patent Challenger did, indeed, have standing to bring the present inter partes review proceeding.  In short, a party’s filing of a declaratory judgment action seeking judgment of non-infringement does not preclude that party from later filing a petition for inter partes review, even if the challenger later files an affirmative defense of invalidity.

More specifically, Patent Owner argued in its Preliminary Response that Patent Challenger lacked standing because the challenger filed a civil action seeking a declaration of non-infringement and then, in response to an inevitable counterclaim of infringement in the same suit, Patent Challenger asserted an affirmative defense of invalidity.  That sequence of events, per Patent Owner, was tantamount to bringing a civil action challenging the validity of a claim of the patent, contrary to the estoppel provisions of 35 USC §315.  Further, per Patent Owner, to allow this proceeding to move forward would thwart the intent of Congress.

The Board’s decision turned on the language of 35 USC §315 that “clearly defines which civil actions, when filed, bar a party from filing an inter partes review – civil actions challenging the validity of a patent.”  Order at 7.  Because a civil action for a declaratory judgment of non-infringement is not a civil action challenging the validity of a patent, there is no bar to the filing of a petition seeking inter partes review when such civil action has been filed.

Lastly, in response to the Patent Owner’s argument that the path taken by the challenger in this case thwarts Congress’s intent, the Board found persuasive the fact that the challenger cannot just file a declaratory judgment action – some action on the part of the Patent Owner creating a case or controversy is necessary.  As such, allowing a party to file both a declaratory judgment action of non-infringement and an inter partes review petition does not allow for harassment of a patent owner.

Standing in Inter Partes Review Should Be Challenged in Preliminary Response

One of the more comprehensive orders handed down by the PTAB in the first few months since the initiation of Inter Partes Review proceedings was issued in IPR2012-00022, Ariosa Diagnostics v. Isis Innovation Ltd.  There are three separate portions of the Order that we will address in three separate posts for clarity (and because they are not very closely related).[pullquote align=”left|center|right” textalign=”left|center|right” width=”30%”]”35 U.S.C. §315(a)(1) – Inter Partes Review Barred by Civil Action. –An inter partes review may not be instituted if, before the date on which the petition for such a review is filed, the petitioner or real party in interest filed a civil action challenging the validity of a claim of the patent.”[/pullquote]

In the first portion of the Order, the Board considered Isis’s request to file a motion challenging Ariosa’s standing to bring the IPR in the first place.  The basis of the challenge related to the fact that Ariosa had filed a declaratory judgment action seeking a finding of non-infringement in United States District Court for the Northern District of California.  Isis filed a counterclaim for infringement in response and, as an affirmative defense to that counterclaim, Ariosa asserted that the patent-in-suit was invalid.

The basis of the motion is 35 U.S.C. §315(a)(1), which bars an inter partes review when the challenger has previously filed a civil action challenging the validity of a claim (declaratory judgment counterclaims do not count).  It seems clear that Isis would have argued in its motion that the PTAB should construe the filing of a declaratory judgment action seeking non-infringement to be equivalent to these facts – wherein a later affirmative defense alleging invalidity is “a civil action challenging the validity of a claim of the patent,” as required by the statute.

But, that determination must wait for another day because the Board denied authorization to Isis to file the motion to challenge Ariosa’s standing.  The proper place to make this type of argument, per the Board, is as part of the patent owner preliminary statement.  Stay tuned.