by Dennis Crouch
In an “informative” decision addressing the limits of multiple IPR petitions, Acting USPTO Director Coke Morgan Stewart granted Director Review and vacated the PTAB’s institution of two IPR proceedings challenging the same patent claims. CrowdStrike, Inc. v. GoSecure, Inc., IPR2025-00068, IPR2025-00070 (USPTO June 25, 2025). The Director found that the Board abused its discretion by allowing CrowdStrike to pursue two separate IPR proceedings against the same claims of Patent 9,954,872 B2, where the primary difference between the petitions was alternative constructions of a single claim term. The Director’s opinion states that allowing multiple petitions based solely on alternative claim constructions “effectively expands the permitted word count and places a substantial and unnecessary burden on the Board and the patent owner.” On remand back to the PTAB, the parties are instructed to submit claim construction briefs in order to allow the Board to consider moving forward with an IPR.
- IPR2025-00068-InformativeDirectorDecision
- IPR2025-00068-PTABInstitutionDecision
- IPR2025-00068-ResponseDirReviewRequest
- IPR2025-00068-DirReviewRequest
Interestingly, this remand may give the petitioner exactly what it wants in this case – room to make the alternative arguments within a single IPR petition.
The underlying patent dispute centers on use of cybersecurity decoy systems (“honeypots”) to monitor malicious activities. Patent 9,954,872, owned by GoSecure, describes methods for analyzing attack patterns and transmitting fingerprints of those attacks to protected networks. The central claim construction dispute focused on the term “association” in independent claims 1, 20, and 21, which require “identifying a plurality of activities being performed at the first computer system, wherein each of the activities includes an activity source, an activity target, and an association between the activity source and the activity target.” CrowdStrike contended that this term could be interpreted either broadly (to encompass any relationship between source and target) or narrowly (requiring some form of classification or characterization of the relationship), but notably refused to advocate for either construction, instead arguing that the intrinsic record was too ambiguous to resolve.
We know from repeated decisions that IPR petitioners are fairly tightly limited to arguments specifically raised in their original petitions. Here, CrowdStrike’s strategic approach to attempt to hedge its bets by filing multiple proceedings based on alternative claim constructions–presenting the PTAB with a menu of options while arguing that “the intrinsic record’s ambiguity” prevented them from choosing between constructions. The company filed IPR2025-00070 addressing what they called the “broader interpretation” of association, using only the Capalik reference, and IPR2025-00068 addressing the “narrower interpretation” by combining Capalik with the King reference. CrowdStrike further justified its approach by indicating uncertainty about GoSecure’s position on claim construction–recognizing here that patentees also hedge their bets by opting for somewhat ambiguous claim terms.
In its institution decision (IPR2025-00068), the Board justify institution of two proceedings based upon the large number of claims (only 21); complex subject matter (true of almost any patent); and the potential that the Patent Owner might argue for a narrow construction of ‘association’ (but the patent challenger has the burden of presenting the proper construction).
The key outcome here is that uncertainty about claim meaning cannot justify separate proceedings unless there are truly exceptional circumstances. Alternative construction arguments are still appropriate, but within a single IPR rather than multiple.
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An oddity of the remand order is that it seems to provide CrowdStrike with something very close to the same strategic advantage it sought through the rejected multiple-petition strategy, albeit through a different procedural path. The Director’s remedy permits (requires?) the patentee GoSecure to file a ten-page brief explaining how “association” should be construed, followed by CrowdStrike’s five-page response, before the Board determines which proceeding to institute. This effectively gives CrowdStrike the information they claimed justified filing parallel petitions in the first place: definitive insight into the patent owner’s claim construction position. Rather than having to hedge their bets across two proceedings, CrowdStrike will now be able to craft a single, targeted response with full knowledge of how GoSecure intends to argue claim scope—a significant tactical advantage that their original procedural gamesmanship likely would not have achieved.