The Board recently denied a petition for inter partes review based on the filing of an earlier declaratory judgment action against the patent at issue in the IPR proceedings. In denying the petition, the Board noted a dichotomy between section 315(b), which erects a bar to a petition filed more than one year after a complaint was served, with section 315(a)(1), which precludes later petition for IPR after the petitioner or its privy files an action attacking the validity of the patent. See Anova Food, LLC v. Sandau, IPR2013-00114, Paper 17 (Sept. 13, 2013). In the Anova Food case, patent owner challenged the petitioner’s standing to file a petition for inter partes review due to several prior declaratory judgment lawsuits by a predecessor-in-interest to the petitioner. The Board agreed. The Board first rejected petitioner’s argument that the word “filed” as used in 35 U.S.C. § 315(a)(1)’s prohibition on inter partes review where “before the date on which the petition for such review is filed, petitioner or real party in interest filed a civil action challenging the validity of a claim of the patent” means “filed and served.” In rejecting this argument, the Board looked to 35 U.S.C. § 315(b), which used the word “served” as opposed to “filed.” Since “[s]ection 315(b) requires that the petitioner be ‘served,’ whereas section 315(a)(1) only requires that the civil action be ‘filed,’…the plain words of the statute” indicate that “when Congress meant for service to be required, it included it in the statute.” The Board then looked to whether Anova Food, LLC was the same entity as Anova Food, Inc., the party that instituted prior declaratory judgment actions against the patent owner over the patent at issue in the 2003-2004 time frame. Looking to state law, the Board concluded that petitioner “has not established that it is not barred under 35 U.S.C. § 315(a)(1).” Id.