PTAB challenges

Proceedings overview

The USPTO Open Data Portal (ODP) API currently reports no AIA trial proceedings (Inter Partes Review, Post-Grant Review, or Covered Business Method) on file for US patent 7770122. Supplementary web searches for PTAB activity related to this patent, including those involving its current assignee Diem LLC and known litigant BigCommerce Inc., also did not reveal any such proceedings. This indicates an absence of direct challenges to the patentability of the claims of US7770122 at the Patent Trial and Appeal Board.

Strategic summary

As of the current date, no claims of US patent 7770122 have been challenged or invalidated through AIA trial proceedings at the PTAB. This means all claims of the patent remain untested in an IPR, PGR, or CBM context. Consequently, there is no estoppel landscape established by the PTAB for this patent, and all prior-art grounds remain available for potential future challenges.

The absence of PTAB activity is notable, especially given that Diem LLC has asserted the patent in district court litigation, including cases that reached the Federal Circuit on other procedural matters (e.g., venue challenges in Diem LLC v. BigCommerce, Inc.). Typically, patents involved in assertion campaigns, particularly those with a history of litigation by an NPE, tend to attract IPR filings from defendants seeking to invalidate the asserted claims. The lack of PTAB proceedings suggests either that prior defendants chose not to pursue such avenues, that settlements occurred before IPR petitions were filed, or that the patent has not been extensively asserted against entities with a strong incentive or capacity to file IPRs.

Recommended next steps

Given the complete absence of PTAB activity for US patent 7770122, a defendant currently facing assertion of this patent would need to initiate any PTAB challenge from scratch. This means:

• No claims are invalidated: All claims of US7770122 are currently presumed valid from a PTAB perspective, and no claims have been canceled or narrowed.
• Full scope of prior art available: There are no PTAB-based estoppel bars on which prior art grounds can be raised. A defendant would have the full range of statutory grounds (e.g., novelty under § 102, obviousness under § 103) available to them, provided the petition meets the statutory and regulatory requirements for institution.
• Consider filing an IPR: If facing an assertion, a potential defendant should conduct a thorough prior art search, especially considering the prior art cited during prosecution and those mentioned in the "Prior art" section of this analysis (e.g., U.S. Pat. No. 7,610,219 to Sayed, US 2007/0106950 A1, US 2004/0003348 A1, US 2008/0183883 A1, US 2005/0071373 A1). If strong grounds for unpatentability are identified with a reasonable likelihood of prevailing, filing an IPR petition should be strongly considered as a defensive strategy.