January 12, 2017
Law360
By Virginia L. Carron; Ashley M. Winkler
Authored by Virginia L. Carron and Ashley M. Winkler
This analysis is the second in a two-part series describing trends in the Patent Trial and Appeal Board’s exercise of its discretion to deny institution of inter partes review. As described in the first article, the PTAB has discretion under 35 US.C. § 325(d) to decline institution of inter partes review when "the same or substantially the same prior art or arguments" were previously presented to the U.S. Patent and Trademark Office. Although no statute or regulation provides guidance on what constitutes "the same or substantially the same prior art or arguments," it is possible to identify trends in the board’s decisions to exercise § 325(d) discretion. When present, certain factors seem to strongly influence the board’s decision.
This article considers the board’s treatment of art or arguments that were first presented to the USPTO during inter partes proceedings (e.g., IPR, covered business-method review, and post-grant review). Such proceedings involve the participation of a third-party petitioner in addition to the patent owner and the board.
In institution decisions where art or arguments were previously presented during inter partes review, the board regularly identifies the following reasons in considering whether the art or argument are "substantially the same." The first two factors, the (1) similarity of argument and (2) similarity of prior art come from the language of § 325(d) itself are the most relevant given they appear in the language of the statute. The next three factors, the (3) similarity of claims, (4) similarity of grounds, and (5) similarity of parties, are closely related to prior art and arguments and can be highly influential. The remaining factors, (6) timing and status of pending proceedings, (7) second chances, and (8) justifications, generally reflect policy concerns and are secondary considerations that merely tend to provide further support for the decision the board reached on the basis of the preceding factors.
Generally, if a petition repeats an argument, the board may be more likely to deny institution. This tends to be the most persuasive factor. If the duplicated argument is supported by the same prior art, then the board will likely deny IPR.1 But even if the petitioner introduces new prior art, the board tends to deny petitions based on repeated arguments.2
If the petitioner raises a new argument, the board may be more likely to institute IPR. This trend, however, is less developed because fewer petitions with new arguments alone have been presented to the board. Often where a new argument is petitioned, other factors that trend towards institution are similarly present. For example, in Silicon Laboratories Inc. v. Cresta Technology Corp., the petitioner raised a new argument and also challenged new claims, which, as discussed below, often motivates the board to institute IPR.3
To analyze the similarities in the petitioner’s argument, the board often compares the limitations that the petitioner asserts are relevant to the particular challenge with limitations that the petitioner suggests are present in the cited prior art. As an example, consider Unilever Inc. v. Procter & Gamble Co., in which the board makes an effort to associate the petitioner’s arguments in the first petition with the petitioner’s arguments in the instant petition.4
Generally, if a petition presents new prior art, the board’s decision to institute will nevertheless be most influenced by the repetition, or lack thereof, in the petition’s argument. Simply stated, the similarity of prior art is less influential than the similarity of arguments. Not surprisingly, if the petitioner can show that it presented new arguments supported by newly cited prior art, then the petitioner will likely be successful in instituting IPR.5 Or in the reverse, if the patent owner can demonstrate that the petition presents repeated arguments supported by previously cited prior art, then the patent owner will likely be able to persuade the board to deny institution.6
More interesting are the cases where there is a combination of repetition and newly cited positions. The board displays a strong trend for denying petitions that are supported by new citations to old prior art or even citations to completely new references but repeat previously presented arguments.7 As discussed above, the board is highly persuaded by the presentation of new arguments and it is a common error by petitioners to attempt to cure previously petitioned arguments with new prior art.
Certainly, the significance of the new prior art added to the petition may influence the board’s consideration of it. For example, a petitioner that does not change a primary prior art reference, but that amends, adds, or replaces secondary references will likely not succeed in instituting IPR.8
Generally, if a petition challenges new claims, the board may be more likely to institute IPR.9 Other factors will, however, influence the board’s decision. For example, in Ford Motor Co. v. Paice LLC, the board declined to institute IPR even when the petitioner challenged new claims because the new claims were of a similar scope to the previously challenged claims and the petitioner relied on the same primary prior-art reference.10
Generally, if a petitioner repeats previously raised grounds of invalidity, the board may be more likely to deny institution.11 This trend, however, should be analyzed in view of the fact that when petitioners challenge the same claims on the same grounds, it generally follows that the petitioner also presented substantially similar prior arguments and/or art.12 And in contrast, petitioners that raise new grounds to challenge a patent will typically support those challenges with new arguments.13 However, in Norman International Inc. v. Hunter Douglas Inc., the petitioner attempted to challenge a repeat claim based on different grounds.14 The board found that the proffered support for the new anticipation ground was nearly identical to the support for the obviousness ground included in the petitioner’s first petition.15 The board denied the petition as to that claim.16 In sum, although similarity of grounds is not highly persuasive, petitioners should not rely on merely amending the grounds to survive institution, and patent owners should continue to highlight repeat grounds where petitioned.
Generally, if a new party files a repetitive petition for IPR, the board may be more likely to nevertheless institute review.17 When a petition is brought by the same party, the board will strictly analyze the similarity of art and argument. In contrast, and as discussed below, the board demonstrates a desire to allow petitioners the opportunity to challenge the patent even though a petitioner may make repetitive arguments and introduce duplicative prior art. Therefore, even though the board may have considered a similar petition, it will likely not use § 325(d) discretion to deny a petitioner the opportunity to challenge a patent through IPR where that petitioner has not yet litigated the patent.
In Nestle USA Inc. v. Steuben Foods Inc., for example, the board instituted IPR for a petition that challenged repeat claims on the same grounds and based on similar prior art.18 The petition was brought by a new challenger to the underlying patent.19 In its decision, the board positively acknowledged that new prior-art references were introduced by the new petitioner.20 Such positive consideration of new art contrasts with decisions where the same petitioner substantially duplicates a challenge and merely adds prior-art references.21 Here, however, the board notes that even though it is "mindful of the burden on Patent Owner and the USPTO in analyzing ... previously considered references," it is not persuaded it should use its discretion to deny the instant petition.22
Additionally, previous board decisions demonstrate that the board considers the relationships between petitioners to determine the interests of the party petitioning for IPR. The board is less willing to afford a new opportunity to challenge a patent to a party that represents effectively the same interests as a previous petitioner. In Medtronic Inc. v. Robert Bosch Healthcare Systems Inc., the board states that it has "taken into account that Petitioner here is a real party-in-interest" to an earlier petition and ongoing IPR of the underlying patent.23 The Board also makes note of the fact that the petitioner in the present case was already involved in a district-court trial regarding the patent and "substantially similar grounds."24 The board will also consider if the petitioner is a co-party to a previous petitioner. In Maxlinear Inc. v. Cresta Technology Corp., the board took specific note that the petitioner was a co-defendant in district-court litigation and that the co-defendant had already challenged the patent on each of the grounds presented by the petitioner.25 The board denied the petition to institute.26
The board also examines the status of related proceedings. The board may review a petitioner’s opportunity to move for joinder,27 whether a petitioner would be time-barred without joinder, or if other proceedings will provide, or have provided, the petitioner the chance to challenge the patent. When an ongoing proceeding may provide the petitioner with a platform to raise even new challenges, the board may use § 325(d) discretion to deny institution.28 In contrast, when an ongoing proceeding is at a stage that prevents the board from determining the outcome of trial, then the board may be more persuaded to institute IPR.29
Because § 325(d) involves repeated prior art and arguments, the statute is often relevant in cases where related proceedings are still pending and petitioners have the ability to move for joinder. Where a petitioner seeks, or could seek, to join an ongoing proceeding, the board looks at several factors. Generally, if the motion for joinder is a repeat-petitioner’s attempt to challenge claims previously denied to an instituted IPR, the board generally declines to institute IPR.30 The board may be particularly inclined to deny a petition when the petitioner would be time-barred31 from challenging the patent but for the joinder exception.32
In its decision to institute IPR, the board often discusses whether the instant petition merely represents the petitioner’s attempt at a "second bite at the apple." While these discussions by the board are important for petitioners and patent owners alike, parties should note that the arguments for and against second chances are secondary to the factors discussed above. The board’s discussion of second chances is often reactionary an already-decided institution decision and merely provides further support for that decision.
The board generally disapproves of a petitioner that uses a previous petition as a "how-to-guide." For example, in ZTE Corp. v. Contentguard Holdings Inc., the board explained that it "is concerned about encouraging, unnecessarily, the filing of petitions which are partially inadequate."33 And in BLD Services LLC v. LMK Technologies LLC, after finding that the petitioner presented substantially the same arguments, the board declined to even consider the merits of newly presented prior art because the new evidence was crafted with the knowledge of the board’s first decision.34
Repeatedly the board has reviewed cases like ZTE Corp., Unilever Inc. v. Procter & Gamble Co.,35 or Samsung Electronics Co. Ltd. v. Rembrandt Wireless Technologies LP.36 In each of these cases, the petitioner previously failed to obtain institution for certain grounds. In each, the petitioner then challenged the underlying patent, relying on the same primary reference but adding new evidence or prior art to address the errors of the first petition. And in each, the board denied IPR. In light of the board’s strong dislike of second chances, petitioners should not include language in their petition demonstrating that the instant petition corrects errors that previously caused the board to deny institution.37 There are exceptions to the board’s general trend towards avoiding second-chance IPRs.38 But in many of these exceptional cases, there was another factor that likely motivated the board to institute IPR.39
Closely related to second chances, generally the board prefers that a petitioner repeating prior art or arguments provides a justification for the board’s institution of IPR. The board has made clear that "there is no per se rule that a Petitioner must demonstrate how the Petition is not redundant to any prior art and argument presented to the USPTO."40 For example, in Medtronic Inc. v. Nuvasive Inc., the petitioner argued that grounds for IPR were not redundant.41 But the board was unpersuaded because the petitioner did not provide "any specific reasoning to support that argument, other than to state that the grounds are based on different prior art references."42
The purpose of the justification is primarily to overcome the board’s trend away from providing petitioners with "second chances"; the board wants to understand why the petitioner did not previously raise the new, purportedly better prior art and arguments. In many cases the failed justifications of the petitioner attempted, but failed, to explain why any newly added prior-art reference or argument was not previously available.43 Other petitioners have failed to persuade the board to institute IPR by relying on arguments that assert that the petitioner’s actions were in good faith.44
Some petitioners have succeeded in persuading the board that a second IPR is required. The board instituted IPR in Ariosa Diagnostics v. Isis Innovation Ltd., because the petitioner explained that a new product had been launched since the first petition and that as a result, there was the potential for new assertions of infringement.45 The petitioner in Silicon Laboratories Inc. v. Cresta Technology Corp., explained that it "file[d] this Petition to challenge the remaining claims that the Patent Owner may likely assert in the district court case before Petitioner is barred from doing so [by 35 U.S.C. § 315(b)]."46
In conclusion, and as described in this two-part series, § 325(d) provides a mechanism for the board to balance the competing interests during IPR proceedings. The board liberally exercises this discretion for denying petitioners that repeat prior art or arguments previously presented by the same petitioner and to the board itself. But, in some circumstances, the board also exercises § 325(d) discretion to deny institution based on serial challenges or based on prior art and arguments analyzed by examiners during ex parte proceedings. Although § 325(d) is ultimately discretionary and the board may institute or decline any petition, these trends may shape parties’ strategies during early stages of IPR proceedings.
Endnotes
1 See e.g., Netapp Inc. v. Crossroads Systems, Inc., No. IPR 2015-00773 (P.T.A.B. Sept. 9, 2015) (Paper 13); LG Electronics, Inc. v. Innovative Display Technologies, LLC, No. IPR 2015-00496 (P.T.A.B. July 20, 2015) (Paper 10); Norman International, Inc. v. Hunter Douglas Inc., No. IPR2014-01174 (P.T.A.B. Feb. 10, 2015) (Paper 7).
2 See, e.g., PNC Bank, N.A. v. Secure Axcess, LLC, No. CBM2015-00039 (P.T.A.B. July 10, 2015) (Paper 9); Continental Automotive Systems, Inc. v. Wasica Finance GMBH & Blueacre Finance Ag, No. IPR2014-01454 (P.T.A.B. Feb. 13, 2015) (Paper 14); Intelligent BioSystems, Inc. v. Illumina Cambridge Ltd., No. IPR2013-00324 (P.T.A.B. Nov. 21, 2013) (Paper 19).
3 No. IPR2015-00615 (P.T.A.B. Aug. 14, 2015) (Paper 9).
4 No. IPR2014-00506, slip op. 7 (P.T.A.B. July 7, 2014) (Paper 17).
5 See, e.g., Samsung Electronics Co., Ltd., v. Surpass Tech Innovation LLC, No. IPR2015-00887 (P.T.A.B. Sept. 9, 2015) (Paper 9); Facebook, Inc. v. TLI Communications, LLC, No. IPR2015-00778 (P.T.A.B. Aug. 28, 2015) (Paper 17).
6 See, e.g., Activision Blizzard, Inc. v. Acceleration Bay, LLC, No. IPR2016-00932 (P.T.A.B. June 23, 2016) (Paper 13).
7 See, e.g., Praxair Distribution, Inc. v. INO Therapeutics LLC, No. IPR2016-00781 (P.T.A.B. Aug. 25, 2016) (Paper 10); BLD Services, LLC v. LMK Technologies, LLC, No. IPR2015-00723 (P.T.A.B. Aug. 24, 2015) (Paper 7); JIAWEI Techonology (HK) Ltd v. Simon Nicholas Richmond, No. IPR2015-00580 (P.T.A.B. May 1, 2015) (Paper 22); Conopco, Inc. v. Procter & Gamble Co., No. IPR2014-00628 (P.T.A.B. Oct. 20, 2014) (Paper 21); cf. Amazon.com v. AC Technologies, S.A., No. IPR2015-01802 (P.T.A.B. Mar. 8 2016) (Paper 10).
8 See, e.g., Ford Motor Co. v. Paice LLC, No. IPR2015-00767 (P.T.A.B. Aug 18, 2015) (Paper 14); Medtronic, Inc. v. Robert Bosch Healthcare Systems Inc., No. IPR2014-00436 (P.T.A.B. June 19, 2014) (Paper 17).
9 See, e.g., Cepheid v. Roche Molecular Systems, Inc., No. IPR2015-00881 (P.T.A.B. Sept. 17, 2015) (Paper 9) (instituting and noting specifically that the instant petition challenged new claims); Apple Inc. v. VirnetX Inc., No. IPR2015-00811 (P.T.A.B. Sept. 11, 2015) (Paper 8) (same).
10 No. IPR2015-00767 (P.T.A.B. Aug. 18, 2015) (Paper 14); cf. Ford Motor Co. v. Paice, LLC, No. IPR2015-00799 (P.T.A.B. Nov. 9, 2015)(Paper 11) (instituting because the petitioner challenges different dependent claims even though the same prior art is cited).
11 See, e.g., Intelligent BioSystems, Inc. v. Illumina Cambridge Ltd., No. IPR2013-00324 (P.T.A.B. Nov. 21, 2013) (Paper 19); Maxlinear, Inc. v. Cresta Technology Corp., No. IPR2015-00593 (P.T.A.B. Aug. 14, 2015) (Paper 9).
12 See LG Electronics, Inc. v. Innovative Display Technologies, LLC, No. IPR2015-00496 (P.T.A.B. July 20, 2015) (Paper 10).
13 See Valeo North America, Inc. v. Magna Electronics, Inc., No. IPR2014-01204 (P.T.A.B. Jan. 28, 2015) (Paper 13).
14 No. IPR2014-01174, slip op. 12 (P.T.A.B. Feb. 10, 2015) (Paper 7); see also US Endodontics, LLC v. Gold Standard Instruments, LLC, No. IPR2015-01476 (P.T.A.B. Oct. 26, 2015) (Paper 13).
15 No. IPR2014-01174, slip op. 12.
16 Id. at 13.
17 See, e.g., JIAWEI Technology (HK) Ltd v. Simon Nicholas Richmond, No. IPR2015-00580 (P.T.A.B. May 1, 2015) (Paper 22) (denying IPR where the same petitioner had previously challenged the same underlying patent); Conopco, Inc. v. Procter & Gamble Co., No. IPR2014-00628 (P.T.A.B. Oct. 20, 2014) (Paper 21) (same).
18 No. IPR2014-01235, slip op. 7 (P.T.A.B. Dec. 22, 2014) (Paper 12).
19 Id. at 3-4.
20 Id. at 7.
21 See supra Part I(B) (discussing the Board’s general trend away from instituting IPR when a petitioner adds prior-art references).
22 Nestle USA, Inc., IPR2014-01235, slip op. at 7. See also Samsung Electronics Co., Ltd., v. Surpass Tech Innovation LLC, No. IPR2015-00887 (P.T.A.B. Sept. 9, 2015) (Paper 9) (instituting IPR and comparing the instant petition with an earlier petition filed by another party).
23 No. IPR2014-00436, slip op. 12 (P.T.A.B. June 19, 2014) (Paper 17).
24 Id.
25 No. IPR2015-00593, slip op. 2, 4 (P.T.A.B. Aug. 14, 2015) (Paper 9).
26 Id. at 5.
27 See e.g., Continental Automotive Systems, Inc. v. Wasica Finance GMBH & Blueacre Finance Ag, No. IPR2014-01454, slip op. 7 (P.T.A.B. Feb. 13, 2015) (Paper 14) (denying institution and taking into consideration the petitioner’s failure to request joinder); Maxlinear, Inc. v. Cresta Technology Corp., No. IPR2015-00593, slip op. 5 (P.T.A.B. Aug. 14, 2015) (Paper 9) (denying a petitioner’s request to institute IPR and then place the proceeding in abeyance "until and unless a settlement of the [related] proceeding occurs."); Gameloft, S.A. v. Rothschild Digital Media Innovations, LLC, No. IPR2016-00472, slip op. 9-10 (P.T.A.B. June 21, 2016) (Paper 9) ("Granting the instant Petition and consolidating the resulting proceeding with the Sony IPR would complicate the latter proceeding with a second set of papers that are wholly cumulative in substance of the papers already of record in the latter proceeding."). Cf. Oracle Corp. v. Crossroads Systems, Inc., No. IPR2015-00854, slip op. 8 (P.T.A.B. Sept. 15, 2015) (Paper 14) (instituting and allowing permitting joinder).
28 See Intelligent BioSystems Inc. v. Illumina Cambridge Ltd., No. IPR2013-00324, slip op. 7 (P.T.A.B. Nov. 21, 2013) (Paper 19) (denying institution as to some claims because petitioner would have the opportunity to put forward new prior-art references during a still-pending IPR because patent owner had requested amendment).
29 See Nestle USA, Inc. v. Steuben Foods, Inc., No. IPR2014-01235, slip op. 7 (P.T.A.B. Dec. 22, 2014) (Paper 12) (instituting IPR for a new petitioner because the patent owner filed a motion to terminate trial in a still-pending IPR brought by a different petitioner).
30 See, e.g., Unilever, Inc. v. Procter & Gamble Co., No. IPR2014-00506, slip op. 8 (P.T.A.B. July 7, 2014) (Paper 17) (denying petition against each claim previously and unsuccessfully challenged and denying the petitioner’s motion for joinder); JIAWEI Technology (HK) Ltd. v. Simon Nicholas Richmond, No. IPR2015-00580, slip op. 7 (P.T.A.B. May 1, 2015) (Paper 22) (same); see also infra Part I(G) (discussing the Board’s general trend away from instituting "second-chance" proceedings).
31 The default rules for IPR prevent a petitioner from petitioning to institute IPR more than one year after the petitioner (or a related party) is served with a complaint alleging infringement of the patent. 35 U.S.C. § 315(b). There is an exception to the rule in subsection (c), which allows a petitioner to request joinder to another on-going IPR outside the one-year limit. 35 U.S.C. § 315(b), (c).
32 See Samsung Electronics Co., Ltd. v. Rembrandt Wireless Technologies, LP, No. IPR2015-00118, slip. op. 7 (P.T.A.B. Jan. 28, 2015) (Paper 14) ("[E]specially in light of the fact that, barring joinder, this Petitioner is time-barred under 35 U.S.C. § 315(b), we exercise our discretion under 35 U.S.C. § 325(d) to deny the Petition . . . ."); see also ZTE Corp. v. Contentguard Holdings Inc., No. 2013-00454, slip op. 5 (P.T.A.B. Sept. 25, 2013) (Paper 12).
33 See ZTE Corp. v. Contentguard Holdings Inc., No. 2013-00454, slip op. 5-6 (P.T.A.B. Sept. 25, 2013) (Paper 12).
34 No. IPR2015-00723, slip op. 10 (P.T.A.B. Aug. 24, 2015) (Paper 7).
35 No. IPR2014-00506 (P.T.A.B. July 7, 2014) (Paper 17).
36 No. IPR2015-00555 (P.T.A.B. June 19, 2015) (Paper 20).
37 See, e.g., Netapp Inc. v. Crossroads Systems, Inc., No. IPR2015-00777 (P.T.A.B. Sept. 3, 2015) (Paper 12) ("[T]he Petition makes clear that this case has been guided by, and has received the benefit of, seeing the decision addressing nearly identical grounds in the [related] proceeding."); Medtronic Inc. v. Nuvasive, Inc., No. IPR2014-00487 (P.T.A.B. Sept. 11, 2014) (Paper 8) (denying a petition that stated "According to Petitioner, it is responding to 'a noted deficiency,' and is providing new evidence and argument as to how the previously supplied prior art renders the challenged claims obvious.").
38 See e.g., Microsoft Corp. v. Bradium Techonologies, LLC, No. IPR2016-00449 (P.T.A.B. July 27, 2016) (Paper 9) ("[I]t is unrealistic to assume a second petition will not attempt to address deficiencies of an earlier petition, and there is no established per se rule requiring that we deny institution based on a 'roadmap' test.").
39 See e.g., Nestle USA, Inc. v. Steuben Foods, Inc., No. IPR2014-01235, slip op. 7 (P.T.A.B. Dec. 22, 2014) (Paper 12) (noting that § 325(d) does not require denial of repeat petitions but with other factors including a new petitioner and unresolved first petition); Cepheid v. Roche Molecular Systems, Inc., No. IPR2015-00881, slip op. 5-6 (P.T.A.B. Sept. 17, 2015) (Paper 9) (instituting a repeat petition where new claims were challenged and new art was added)
40 Valeo North America, Inc. v. Magna Electronics, Inc., No. IPR2014-01204, slip op. 11 (P.T.A.B. Jan. 28, 2015) (Paper 13).
41 No. IPR2014-00487, slip op. 6 (P.T.A.B. Sept. 11, 2014) (Paper 8).
42 Id.
43 See, e.g., Samsung Electronics Co. Ltd. v. Rembrandt Wireless Technologies, LP, No. IPR2015-00555, slip op. 7, 8 (P.T.A.B. June 19, 2015) (Paper 20) (stating it had not been "apprised of a reason that merits a second chance" or that the newly added prior art was not previously available); see also Samsung Electronics Co., Ltd. v. Rembrandt Wireless Technologies, LP, No. IPR2015-00118, slip op. 7 P.T.A.B. Jan 28, 2015) (Paper 14); see also, e.g., Arista Networks, Inc. v. Cisco Systems, Inc., No. IPR2015-01710 (P.T.A.B. Feb. 16, 2016) (Paper 7) (finding that petitioner’s statement that it became aware of and appreciated the disclosure of a reference after the filing of a previous IPR did not specifically demonstrate that the newly cited reference was not previously known or available); Intelligent BioSystems Inc. v. Illumina Cambridge Ltd., No. IPR2013-00324, slip op. 6 (P.T.A.B. Nov. 21, 2013) (Paper 19) ("[W]e note that [Petitioner] has not provided any justification for filing the instant petition, other than its representation that it became aware of the relevance of [a prior art reference] after the filing of the [prior petition].").
44 See e.g., Square, Inc. v. Think Computer Corp., No. CBM2015-00067, slip op. 9-10 (P.T.A.B. July 2, 2015) (Paper 14) ("There is no mention of good faith in § 325(d)."); see also Netapp Inc. v. Crossroads Systems, Inc., No. IPR2015-00777, slip op. 7 (P.T.A.B. Sept. 3, 2015) (Paper 12) (finding that petitioner’s statement that the petition was not "filed for any improper purpose such as harassment or delay" was not a persuasive reason to institute IPR).
45 No. IPR2013-00250, slip op. at 2, 4 (PTAB Sept. 8, 2013) (Paper 25); see also Microsoft Corp. v. Proxyconn, Inc., Case IPR2013-00109, slip op. at 3 (P.T.A.B. Feb. 25, 2014) (Paper 15) (instituting IPR because additional claims had been asserted against the petitioner in concurrent district court litigation).
46 No. IPR2015-00615, slip op. 24 (P.T.A.B. Aug. 14, 2015) (Paper 9).
Originally printed in Law360 (www.law360.com). Reprinted with permission. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm's clients.
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