The Power of Unreviewability
Patent – Patently-O 2025-07-22
Summary:
by Dennis Crouch
The Federal Circuit in IGT v. Zynga Inc. affirmed the PTAB IPR final written decision finding patent claims obvious. In addition, the court refused another institution challenge — holding that the Agency’s use of “interference estoppel” is an aspect of institution decisions that are generally non-reviewable on appeal. This decision reinforces my belief that the pending SAP and Motorola petitions will be denied.
To understand this case, we need to step back to 2003, when patent interference practice still governed priority disputes between competing inventors. IGT owned U.S. Patent No. 7,168,089 for gaming software authorization systems. When Zynga’s predecessor copied IGT’s published claims into its own application, the USPTO declared an interference in 2010. Zynga moved for judgment that IGT’s patent was obvious over certain prior art references (Carlson, Wells, and Alcorn). Ultimately, the Board terminated the interference based upon a finding that Zynga’s application lacked adequate written description support for IGT’s claims.
Fast-forward to 2021: IGT sued Zynga for infringement, and Zynga filed an inter partes review petition challenging the same patent claims. However, Zynga’s IPR relied on different prior art (Goldberg and Olden) that had not been presented during the interference.