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Dell Inc. v. Acceleron, LLC

PTAB Need Not Consider Arguments Raised Only at Oral Argument

Dell Inc. v. Acceleron, LLC, 2018 WL 1370549 (Fed. Cir. Mar 19, 2018) (Moore, REYNA, Taranto) (PTAB) (3 of 5 stars)

Fed Cir affirms IPR determination confirming patentability for Acceleron’s patent. The PTAB did not err in declining to consider Dell’s contention that a specific aspect of the prior art reference corresponded to a key limitation in certain Acceleron claims. The contention in question was raised only at oral argument before the PTAB. The opinion rejects Dell’s argument that this was inconsistent with the Fed Cir’s prior opinion in this case, Dell I, 818 F.3d 1293 (Fed. Cir. 2016). That opinion did not instruct the PTAB to consider Dell’s argument, only to apply appropriate procedures to avoid prejudicing Acceleron. Neither NuVasive, 841 F.3d 966 (Fed. Cir. 2016), nor SAS Institute, 825 F.3d 1341 (Fed. Cir. 2016), was contrary, as both cases involved preserving parties’ ability to present argument on new theories from the Board, not from one of the parties.

KEYWORDS: INTER PARTES REVIEW; PROCEDURE