In two designated rulings, the Board instituted parallel petitions built on alternative theories: two priority dates in one case, two claim constructions in the other. The Director vacated all six institutions and sent both cases back to pick at most one petition per patent.
Before you read
Two petitions against the same claims, one for each answer to a disputed priority date. The Board instituted both. What did the Director say the Board should have done?
Absent exceptional circumstances, the Board should either resolve the priority date issue or institute, at most, the first-ranked petition (PacifiCorp, precedential).
Part 1 of 7
PacifiCorp and MidAmerican Energy filed two IPRs against each of two Birchtech patents. For each patent, one petition relied on prior art dated before the owner’s earliest priority date. The other challenged that priority date and relied on later, intervening art. The Board instituted all four.
| The ’370 patent | The ’218 patent | |
|---|---|---|
| Petitions | IPR2025-00687 and -00688 | IPR2025-00717 and -00718 |
| The two theories | Art before the earliest priority date; or attack priority and use intervening art | The same pair |
| Grounds across the pair | 10 | 13 |
| Board | Instituted both | Instituted both |
| Director, Jan 12, 2026 | Both vacated | Both vacated |
PacifiCorp v. Birchtech, IPR2025-00687, Paper 40 (precedential, designated Jan. 12, 2026).
On January 12, 2026, the Director held that the Board “abused its discretion” and vacated every institution.
Part 2 of 7
Petitioners file parallel petitions to hedge. When an open question would change which prior art counts, a second petition lets them argue both answers. That question might be the patent’s priority date, the filing date it is entitled to, or the meaning of a disputed claim term. Word limits make it hard to fit both theories in one petition.
The Office’s guidance has long pushed the other way. Both rulings quote the Trial Practice Guide.
“[O]ne petition should be sufficient to challenge the claims of a patent in most situations.”
Part 3 of 7
The petitioners argued their case was the rare exception the guide allows, a priority dispute. The Director said no, for two reasons.
The Director sent the case back for the Board to decide, within 30 days, which petition against each patent to institute. The parties then settled. The USPTO’s Open Data Portal shows the lead case terminated by settlement on July 1, 2026.
Part 4 of 7
CrowdStrike, decided earlier and designated informative, involved the same move with claim construction. CrowdStrike filed two petitions against the same claims. One read the term “association” broadly and raised five obviousness grounds. The other read it narrowly and raised three. The patent owner pointed out that the eight grounds overlapped significantly.
Petition one · IPR2025-00070
Five obviousness grounds.
Petition two · IPR2025-00068
Three obviousness grounds.
The Director held that instituting both was an abuse of discretion. Two petitions under two constructions “effectively expands the permitted word count.” The Board “should have construed the claim term and instituted review of, at most, one of the petitions.” Both institutions were vacated and the case sent back.
The Open Data Portal lists IPR2025-00068 as denied on August 13, 2025. The patent owner’s later Director Review request reports that the Board instituted IPR2025-00070 on remand. Whether IPR2025-00070 went to trial, and how it ended, is not yet confirmed from the official orders.
Part 5 of 7
If you split a challenge, the ranking is the real decision. Test it before you file.
0 of 5 reviewed
Part 6 of 7
Choose your side.
Part 7 of 7
Neither ruling denied outright. Both remanded so the Board could institute one petition per patent, so a hedge costs you the second petition, not necessarily the challenge.
| PacifiCorp | CrowdStrike | |
|---|---|---|
| Status | Precedential | Informative |
| Decided | Jan 12, 2026 | Jun 25, 2025 |
| The hedge | Two priority dates | Two constructions of one term |
| Petitions | 4 (2 patents × 2) | 2 (1 patent) |
| Director | Vacated all, remanded | Vacated both, remanded |
| Later | Lead case settled Jul 1, 2026 | -00068 denied Aug 13, 2025; -00070 reported instituted on remand not yet confirmed |
Status from the USPTO Open Data Portal (Oct 15, 2026) and the patent owner’s Director Review request in IPR2025-00070.
The guide still allows multiple petitions in rare cases, and PacifiCorp’s “exceptional circumstances” language leaves a narrow opening. Only PacifiCorp binds; CrowdStrike is informative. And the remand results don’t show what one well-ranked petition would have achieved: PacifiCorp settled, and CrowdStrike’s second petition is still being traced.
The takeaway
Ranking deserves the same care as choosing the art. It may decide which case you get to try.
Each item is marked in the story with a dashed outline. We update the story when the official record confirms or corrects it.
Precedential decisions bind the Board within their designated scope. Informative decisions show the Office’s reasoning but do not bind the Board. Court opinions are cited for what they decided; later history was checked on the date shown above.