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Winston & Strawn's Mike Tomasulo, and Louis Campbell, and Kevin Boyle. (Photo: Courtesy Photo) Winston & Strawn’s Mike Tomasulo, left, Louis Campbell, center, and Kevin Boyle. (Courtesy photos)

The rise of discretionary denials at the Patent Trial and Appeal Board has been well documented. One relatively new basis for denying institution under the PTAB’s discretionary authority provided in the precedential NHK Spring v. Intri-Plex Technologies decision has been based on the status of a parallel U.S. District Court litigation. In particular, the PTAB was concerned about the judicial inefficiencies that would result when the district court litigation went to trial before the PTAB would reach its final written decision.

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