Squires Tells PTAB That Petitioner's Inconsistent Claim Constructions Must Be Explained In All Cases

""When a petitioner takes alternative positions before the Board and a district court, that petitioner should, at a minimum, explain why alternative positions are warranted." - Squires' Director Review Decision U.S. Patent and Trademark Office (USPTO) Director John Squires issued a Director Review decision on Monday, which he designated as precedential, vacating a decision granting institution of an inter partes review (IPR) because the Board erred in accepting the petitioner's inconsistent claim constructions without explanation."

"In Revvo Technologies, Inc. v. Cerebrum Sensor Technologies, Inc., IPR2025-00632, Paper 20 (Squires November 3, 2025) (precedential), the PTAB instituted the IPR on September 15, 2025, and Director Review was initiated sua sponte in order to address the claim construction issues. Revvo in its petition accepted Cerebrum's proposed claim constructions from the parallel district court litigation, even though Revvo has proposed different constructions for the relevant claim terms in the district court."

"Cerebrum argued that the petition should be denied because of the inconsistent positions, which it said amounted to gamesmanship. While the Board acknowledged the argument, it said it "was not persuaded that any gamesmanship occurred because Patent Owner did not dispute any of the claim constructions provided in the Petition." Under Rule 42.104(b)(3), all that a petitioner must do is identify how the claim language is to be construed," which Revvo did, said the PTAB."

Director John Squires vacated a PTAB institution decision because the Board accepted inconsistent claim constructions from a petitioner without requiring an explanation. The petitioner, Revvo, adopted the patent owner's claim constructions in the IPR petition despite proposing different constructions in parallel district court litigation and provided no rationale for the differing positions. The patent owner argued the inconsistencies amounted to gamesmanship and cited prior PTAB decisions. The Board declined to deny institution, citing Rule 42.104(b)(3) and the lack of dispute by the patent owner, but Director Review found the Board erred and designated the decision precedential.

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