On October 13, 2014, The Brinkman Corporation filed a petition for Inter Partes Review of U.S. Patent 8,381,712 directed to a barbecue grill that allows simultaneous gas grilling and charcoal-fueled grilling. A&J Manufacturing, the owner of the ‘712 patent, challenged Petitioner’s standing to file the IPR based on the fact that the Petition was filed more than one year after the Petitioner received a copy of the complaint filed in a district court alleging infringement of the ‘712 patent or, alternatively, that the Petition was filed more than one year after the service of an ITC Complaint alleging infringement of the ‘712 patent. The Board rejected the Petitioner’s arguments and held that the relevant start of the one year time bar under 35 U.S.C. § 315(b) is the date when the waiver of service of the complaint executed by the Petitioner was filed with the district court. Based on this date, the Petition was filed within the allotted time.
Pursuant to 35 U.S.C. § 315(b), “[a]n inter partes review may not be instituted if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner, real party in interest, or privy of the petitioner is served with a complaint alleging infringement of the patent.”
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