If a patent owner raises a certain argument in its patent owner preliminary response, and then fails to make the same argument in its patent owner response following institution, the Board may determine that the patent owner has waived the argument. This is exactly what the Board decided in connection with Versata Development Group’s request for rehearing on the Board’s final decision finding four of Versata’s patent claims unpatentable under 35 U.S.C. 101. Specifically, Versata raised six arguments in connection with its request for rehearing and the Board concluded that three of the had been waived. Versata argued: (1) the patent at issue was not a “covered business method patent,” (2) the petition for CBM review was barred by claim and issue preclusion, and (3) 35 U.S.C. § 101 was not a basis for reviewing a claim in a CBM review. See SAP Am., Inc. v. Versata Dev. Group, Inc., CBM2012-00001, Paper 81 (Sept. 13, 2013). The Board concluded that the Patent Owner had waived these arguments by not presenting them in its patent owner response. The Board explained that while the patent owner raised these issues “in its Preliminary Response,” it “did not identify or maintain any of those issues once the trial was instituted.” The Board denied the request for rehearing on those grounds explaining that “[a] request for rehearing of a final decision is not an opportunity for a party to raise issues that were waived.” The Board analogized to Georgia Pacific Consumer Products, LP v. Bon Drehle Corp., 710 F.3d 527, 533-34 (Fed. Cir. 2013), and explained that “the defenses of claim preclusion and issue preclusion are affirmative defenses that must be pleaded,” and “[e]ven when a preclusion defense is not available at the outset of a case, a party may waive such a defense arising during the course of litigation by waiting too long to assert the defense after it becomes available.” Id. The Board, therefore, refused to consider the arguments that it deemed waived by failing to include them in the patent owner response. Thus, patent owners that elect to file preliminary responses should carefully consider the consequences of failing to raise an argument that was made in the preliminary response when it submits the full patent owner response.