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VirnetX Inc. v. Apple, Inc.

VirnetX Inc. (“VirnetX”) appeals from two final written decisions of the Patent Trial and Appeal Board (“Board”) finding that Apple Inc. (“Apple”) had demonstrated by a preponderance of the evidence that claims 1– 11, 14–25, and 28–30 of U.S. Patent No. 8,504,696 (“the ’696 patent”) were unpatentable as obvious. VirnetX Inc. v. Apple Inc., No. IPR2016-00331 (P.T.A.B. June 22, 2017) (“331 Board Decision”); VirnetX Inc. v. Apple Inc., No. IPR2016-00332 (P.T.A.B. June 22, 2017) (“332 Board Decision”). Because VirnetX is collaterally estopped from relitigating the threshold issue of whether prior art reference RFC 24011 was a printed publication and because VirnetX did not preserve the only remaining issue of whether inter partes review procedures apply retroactively to patents that were filed before Congress enacted the America Invents Act (“AIA”), we affirm.

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