Speed Isn’t Everything: Fintiv Factors Prevail Over Early Challenges, Resulting in Denial

In Milwaukee Electronic Tool Corporation v. Klein Tools, Inc., PGR2025-00048, IPR2025-00724, -00892, Paper 14 (P.T.A.B. Sept. 12, 2025), Acting Director Coke Morgan Stewart denied institution for all petitions based solely on the Fintiv factors, despite the fact that all the challenged patents were issued within the past 3 years and had not developed strong settled expectations.

Although the Acting Director determined that the challenged patents—issued in 2022, 2023, and 2025—had not been in force for a significant period of time and had not developed strong settled expectations, which favored discretionary denial, the Acting Director focused her reasoning on a parallel ITC investigation. Specifically referencing the ITC’s final initial determination date of February 18, 2026, and the target completion date of June 18, 2026, the Acting Director explained that institution would result in duplication of efforts because the ITC proceeding is expected to be completed before the Board’s final written decision due date, November 21, 2026. The Acting Director also explained that the ITC already held a Markman hearing and completed fact discovery, and that expert discovery is expected to conclude before an institution decision would be due. Because of “insufficient evidence that the ITC is likely to stay its proceeding” and the risk for “inconsistent decisions,” the Petitions were denied.

Although the Petitions were filed shortly after patent issuance and the patents had not developed strong settled expectations, this decision indicates that the Fintiv factors, and particularly the target completion date in parallel proceedings, continue to carry substantial weight in discretionary denials.