Director Reinforces Post-Revvo Limits On Inconsistent Claim Construction Positions Between District Court And The PTAB

In the November 2025 precedential Revvo Technologies, Inc. v. Cerebrum Sensor Technologies, Inc. decision, Director Squires underscored that unexplained inconsistencies in claim construction positions between district court litigation and IPR proceedings are disfavored and may preclude institution. Two recent Director Review decisions make clear that the Director views Revvo as establishing a meaningful constraint on petitioner advocacy and is prepared to enforce it strictly.

In Revvo Technologies, Inc. v. Tire Stickers LLC, IPR2025‑00631, Paper 34 (Director Feb. 3, 2026), the Board initially instituted inter partes review, and Patent Owner sought Director Review arguing that Petitioner presented inconsistent claim construction positions before the Board and in parallel district court litigation. Although Petitioner argued in district court for constructions that differed from Patent Owner's, before the Board Petitioner adopted Patent Owner's district court construction without addressing its own, inconsistent, district court claim construction positions.

In his decision, Director Squires reiterated that when a petitioner advances alternative claim construction positions before the Board and a district court, the petitioner must, at a minimum, explain why alternative positions are warranted. The Director further rejected Petitioner's post‑hoc justification that it could not wait for the district court to construe the claims before filing its petition, characterizing this as a disfavored “wait‑and‑see” approach, and vacated the institution decision.

That same day, the Director issued a broader order in Generac Power Systems, Inc. v. Champion Power Equipment, Inc., IPR2025‑00805 & IPR2025‑00951, Paper 40 (Director Feb. 3, 2026, vacating institution decisions and denying petitions in two related IPRs following sua sponte  Director Review. The Director concluded that institution was improper under Revvo Technologies, Inc. v. Cerebrum Sensor Technologies and Tesla, Inc. v. Intellectual Ventures II LLC because Generac itself advanced inconsistent positions concerning claim meaning across forums—arguing in related district court litigation that certain claim terms, including “desired pressure” and “selector switch,” were indefinite, while contending before the Board that those same terms were clear, defined, and amenable to construction. Consistent with Tesla, the Director explained that allowing a petitioner to argue indefiniteness in district court while advocating for construction before the Board undermines the Office's goals of predictability and certainty.

The Director rejected Generac's attempts to avoid this inconsistency based on the settlement of other petitioners or the non‑assertion of certain patents. Although one of the challenged patents (the '034 patent) was not asserted against Generac in the related litigation, the Director reasoned that this fact did not eliminate the risk of inconsistent claim constructions because the same claim terms appeared in related family members that were asserted against Generac and challenged by Generac in IPRs. Accordingly, the Director treated Generac's indefiniteness positions for those other patents in district court as relevant to the institution analysis, notwithstanding the absence of litigation as to the '034 patent itself. Because Generac failed to adequately explain why these differing positions were justified, the Director vacated the institution decisions and denied the petitions.

Taken together, these decisions further illuminate how the Director is applying claim construction consistency principles of Revvo. Revvo v. Tire Stickers  teaches that petitioners cannot avoid scrutiny by simply adopting a patent owner's district court construction before the Board or by pointing to the absence of a district court ruling, but instead must affirmatively explain any divergence in positions across forums. Generac builds on that approach by requiring petitioners to evaluate their positions across the broader litigation landscape and related patent families, not just the specific patent challenged in an IPR. Petitioners who do not take that broader view risk denial or vacatur at institution.

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