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Feature3 min readInter partes review

File two petitions, and the Board keeps one.

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.

6 of 6parallel-petition institutions vacated in two designated rulings. Neither ruling ended the challenge outright.

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?

Part 1 of 7

Four petitions, two patents

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 hedge, petition by petition

The ’370 patentThe ’218 patent
PetitionsIPR2025-00687 and -00688IPR2025-00717 and -00718
The two theoriesArt before the earliest priority date; or attack priority and use intervening artThe same pair
Grounds across the pair1013
BoardInstituted bothInstituted both
Director, Jan 12, 2026Both vacatedBoth 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

Why petitioners file two

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.”
PTAB Trial Practice Guide, as quoted in PacifiCorp and CrowdStrike

Part 3 of 7

PacifiCorp: two priority dates

The petitioners argued their case was the rare exception the guide allows, a priority dispute. The Director said no, for two reasons.

Why the exception didn’t apply

Precedential
There was room in one petitionWith 10 and 13 grounds, the petitioners “had ample room in each petition to present multiple grounds.”
The Board should pick, not stackAbsent exceptional circumstances, “the Board should either resolve the priority date issue or institute, at most, the first-ranked petition.”

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: two constructions

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.

Two Board petitions, two constructions

Petition one · IPR2025-00070

Five obviousness grounds.

CrowdStrike arguedRead the term broadly.

Petition two · IPR2025-00068

Three obviousness grounds.

CrowdStrike arguedRead the term narrowly.

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

Rank for the adverse answer

If you split a challenge, the ranking is the real decision. Test it before you file.

Before filing two petitions

0 of 5 reviewed

Part 6 of 7

What to do

Choose your side.

  • Plan for one instituted petition per patent. If you file two, rank them and explain why the second is needed.
  • Put the priority dispute up front. The Board can resolve priority instead of choosing between petitions.
  • Don’t use a second petition to argue a different claim construction. CrowdStrike treats that as extra word count.

Part 7 of 7

Cuts the other way

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.

Same move, different hedge

PacifiCorpCrowdStrike
StatusPrecedentialInformative
DecidedJan 12, 2026Jun 25, 2025
The hedgeTwo priority datesTwo constructions of one term
Petitions4 (2 patents × 2)2 (1 patent)
DirectorVacated all, remandedVacated both, remanded
LaterLead 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.

Sources

  1. S14PacifiCorp v. Birchtech Corp., No. IPR2025-00687, Paper 40 (USPTO Director January 12, 2026) (precedential, designated Jan. 12, 2026). Official source ↗
  2. S15CrowdStrike, Inc. v. GoSecure, Inc., No. IPR2025-00068, IPR2025-00070, Paper 25 (USPTO Director June 25, 2025) (informative, designated June 26, 2025). Official source ↗
  3. S45Patent Owner’s Request for Director Review, CrowdStrike, Inc. v. GoSecure, Inc., No. IPR2025-00070 (filed August 25, 2025), describing the Board’s institution decision on remand (Paper 28). Official page ↗
  4. S53USPTO Open Data Portal: patent file-wrapper records for ex parte reexamination (90/ control numbers) and PTAB trial status, as pulled by PostGrantProceeding on Oct. 14 and 15, 2026. Data source ↗

Not yet confirmed

  • Whether IPR2025-00070 went to trial, and how it ended, is not yet confirmed from the official orders.
  • not yet confirmed

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.

Changes (4)
  • New headline and dek with the combined count (six institutions vacated across two rulings: four in PacifiCorp, two in CrowdStrike).
  • Kept the source note that neither ruling denied outright; both remanded so one petition per patent could still go forward.
  • CrowdStrike’s later history: ODP status for IPR2025-00068 (denied Aug 13, 2025) kept; IPR2025-00070 is now reported, per the patent owner’s Director Review request, as instituted on remand, and flagged until the official orders are read. The original said only “not checked.”
  • Added the ranking checklist from the reviewed note 06.
General information about published decisions, not legal advice. Reading it does not create an attorney-client relationship.
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