Failure to Include Known Prior Art and Arguments in IPR Petition Justifies Denial of Subsequent Petition

"[The petitioner] does not show that we misapplied § 325(d) in assessing whether 'the same or substantially the same prior art or arguments' were raised in the first and second petitions. . . . Our authority is grounded not only in § 325(d), but also in the broader discretion to deny a petition under § 314(a). . . . [The petitioner] argues that the Board should not have considered whether any new prior art or arguments raised in the second petition were known or available to [the petitioner] at the time of filing the first petition. . . . [The petitioner] advances a bright-line approach that would allow petitioners to file 'follow-on' second petitions in order to 'correct deficiencies noted' by the Board in decisions that deny a first petition. That bright-line approach would allow petitioners to unveil strategically their best prior art and arguments in serial petitions, using our decisions on institution as a roadmap, until a ground is advanced that results in review—a practice that would tax Board resources, and force patent owners to defend multiple attacks. We did not err by adopting a more flexible approach that assesses each case on its particular facts to achieve a result that promotes the efficient and economical use of Board and party resources, and reduces the opportunity for abuse of the administrative process."

Petition for Inter Partes Review by Conopco, Inc., IPR2014-00628 (PTAB March 20, 2015, Order) (Obermann, APJ)