These efforts largely failed at the board in 2021. However, Axonics convinced Federal Circuit judges last August that the PTAB denied the company a proper chance to reply to a proposed claim construction from its competitor, something that U.S. Circuit Judge Timothy Dyk warned could create opportunities for sandbagging.
Despite the remand, Axonics failed again at the board.
After reviewing the filings Axonics argued were improperly stricken from the record in 2021, the PTAB, with a largely unchanged panel, declined to alter its position. The exception was Administrative Patent Judge Brent Dougal, who replaced Administrative Patent Judge Alyssa Finamore after she recused herself from the case in September 2023, following the remand order from the Federal Circuit.
“The remainder of petitioner’s arguments in its post remand brief are directed to accusations that patent owner’s arguments are ‘untimely and wrong,’ ‘incorrect,’ and ‘contradictory of the positions on infringement it has taken in district court,'” Judge Tartal wrote in the ruling entered Thursday. “Our decision, however, does not turn on any of the alleged patent owner arguments or district court positions that petitioner disputes.”
