PTAB challenges

Proceedings overview

There is one AIA trial proceeding on file for US patent 8635697, which resulted in a discretionary denial of institution. This means the patent's claims remain untested by this specific IPR challenge, and the patent's defensive posture is currently hardened against this particular petitioner for the grounds raised.

IPR2026-00031 — Fortinet, Inc. v. Kevin McNamee et al

• Type: Inter Partes Review
• Filed: 2025-10-08
• Status: Discretionary Denial (The PTAB declined to institute review based on discretionary factors rather than the merits of the obviousness/anticipation challenge)
• Judge panel: Not publicly available from the provided data or standard search results at this stage, as the decision was a discretionary denial.
• Petition grounds: The petition by Fortinet, Inc. challenged claims 1-25 of US8635697 as unpatentable under 35 U.S.C. §§ 102 and/or 103.
• Institution decision: Denied on 2026-03-06. The PTAB exercised its discretion to deny institution of the IPR petition. The reasoning for the discretionary denial included considerations under Fintiv factors, such as the advanced stage of co-pending district court litigation involving the same parties and patent. The Board found that judicial economy would not be served by instituting the IPR.
• Final Written Decision (if issued): Not issued, as institution was denied.
• Settlement / termination: The proceeding terminated with the denial of institution, effectively preventing a trial. No settlement terms are publicly available.
• Appeal: No appeal to the Federal Circuit, as no Final Written Decision was issued from which to appeal.
• Defensive value: The discretionary denial means that all claims (1-25) of US8635697 remain valid and unchallenged by this specific IPR. For a defendant facing assertion, this indicates that the patent owner successfully fended off an IPR challenge without the merits of the claims being evaluated, which may suggest a stronger defensive position for the patent owner in future challenges from this petitioner or privies on the same grounds. However, the claims were not definitively held patentable, only that the IPR was not instituted.

Strategic summary

All 25 claims of US8635697 are currently UNTESTED by any IPR Final Written Decision. The sole IPR proceeding, IPR2026-00031, filed by Fortinet, Inc., resulted in a discretionary denial of institution. This means that while Fortinet, Inc. challenged all claims (1-25) based on 35 U.S.C. §§ 102 and 103, the PTAB did not reach the merits of these challenges. Consequently, no claims have been canceled or sustained through an AIA trial proceeding.

Regarding the estoppel landscape, 35 U.S.C. § 315(e)(2) bars a petitioner (and its real parties in interest or privies) from asserting in other proceedings that a claim is invalid on any ground that the petitioner raised or reasonably could have raised during the IPR. Since IPR2026-00031 was denied institution based on discretionary factors (e.g., Fintiv considerations due to co-pending litigation), the full scope of estoppel might be debated, but generally, a discretionary denial based on Fintiv can lead to estoppel for the petitioner on the grounds presented in the petition. This effectively hardens claims 1-25 against future challenges by Fortinet, Inc. (and its privies) on the prior art grounds presented in that petition. However, other potential defendants are not estopped from raising those same prior art grounds.

The involvement of Fortinet, Inc. as a petitioner, coupled with the mention of co-pending district court litigation in the discretionary denial reasoning, suggests that this patent has been asserted and is being actively defended by the patent owner. The patent currently belongs to Netskope Inc. after a recent assignment. The denial of institution in IPR2026-00031, based on Fintiv, indicates the PTAB's policy of considering the stage of parallel litigation when deciding whether to institute an IPR.

Recommended next steps

• Since the IPR was denied institution, no claims of US8635697 have been invalidated or confirmed patentable by the PTAB. All claims (1-25) remain as originally granted.
• For a defendant, it is crucial to review the PTAB's decision on discretionary denial for IPR2026-00031 to understand the specific reasoning (e.g., the Fintiv analysis). This document is publicly available on the USPTO PTAB E2E system. Understanding the specific prior art raised by Fortinet, Inc. in its petition for IPR2026-00031 is vital. While Fortinet may be estopped from using those grounds, other defendants are not. This prior art could still form the basis of a new IPR petition or district court invalidity defense.
• There are no active proceedings currently pending that would alter the status of the claims of US8635697 through an AIA trial. The current status of any related district court litigation should be monitored closely, as it was a key factor in the PTAB's discretionary denial.

US8635697B2 - Method and system for operating system identification in a network based security monitoring solution - Google Patents, IPR2026-00031 filed (Not Instituted - Procedural)