PTAB Denies Adverse Judgment Request Post-Arthrex

On March 14, 2018, the PTAB denied a request for adverse judgment brought by petition Commvault Systems, Inc. with respect to certain claims of U.S. Patent 8,717,204, owned by Realtime Data LLC. CBM2017-00061, Paper 18. Commvault had filed a petition for Covered Business Method Review ("CBM"), challenging all thirty claims of the '204 patent.

Prior to the institution decision, Realtime Data disclaimed twenty two of the thirty claims. Realtime Data then demonstrated in its Preliminary Response that CBM jurisdiction did not exist with respect to the remaining claims. The Board agreed, and on January 18, 2018 denied institution of the CBM in full. Nearly a month later, Commvault contacted the Board to request that it enter adverse judgment against Realtime on the basis of the statutory disclaimers, citing the Federal Circuit's decision in Arthrex v. Smith & Nephew, 880 F.3d 1345, 1347 (Fed. Cir. 2018). Realtime responded by demonstrating that the request was both untimely and substantively without legal merit. Paper 17. The Board agreed that the timing of Commvault’s request, if granted, would unduly prejudice Realtime Data.