Acoustic Technology, Inc. v. Itron Networked Solutions, 949 F.3d 1360

Acoustic Technology owns U.S. Patent No. 5,986,574 asserting a "WAN means" claim limitation for transmitting meter data over a wide area network.
Silver Spring filed two timely IPR petitions challenging the ’574 patent on March 3, 2017; Itron was time-barred from filing IPRs due to an earlier 2010 suit by Acoustic.
Silver Spring and Itron began merger discussions before the petitions and agreed to merge on Sept. 17, 2017 (nine days after PTAB instituted the IPRs on Sept. 8, 2017); the merger closed Jan. 5, 2018.
The PTAB issued final written decisions on Aug. 21, 2018, finding the challenged claims unpatentable on obviousness grounds; Acoustic did not raise a §315(b) time‑bar challenge to the Board.
On appeal Acoustic argued (1) the IPRs were time‑barred under 35 U.S.C. §315(b) because Itron was a real party in interest before and after institution, and (2) the Board mis-construed the "WAN means" structure, warranting reversal of the obviousness findings.
The Federal Circuit held Acoustic waived both challenges for failing to present them to the Board and affirmed the PTAB’s final decisions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the IPRs were time‑barred under 35 U.S.C. §315(b) due to Itron's merger-related involvement	Acoustic: Itron was a real‑party‑in‑interest (pre‑ and post‑institution) because of merger negotiations and control after merger; PTAB should be able to reassess §315(b) post‑institution	Itron: Acoustic waived time‑bar by not raising it before the PTAB; post‑institution merger does not render the IPR untimely; PTAB need not reevaluate §315(b) after institution	Waived — Court declined to address merits because Acoustic never raised §315(b) to the Board and appellate review is discretionary on waived issues
Whether the Board mis‑construed "WAN means" and erred in obviousness findings	Acoustic: Board defined corresponding structure too broadly ("any device"); should be limited to a "conventional WAN radio" and prior art does not disclose such a structure	Itron: Acoustic changed its construction/argument on appeal (now arguing any conventional WAN radio is missing), so these new arguments were not presented to the Board	Waived — Court refused to consider new claim‑construction/obviousness arguments not raised before the PTAB; affirmed obviousness findings

Power Integrations, Inc. v. Semiconductor Components Indus., LLC, 926 F.3d 1306 (Fed. Cir. 2019) (§315(b) requires considering relationships arising after petition filing but before institution)
PGS Geophysical AS v. Iancu, 891 F.3d 1354 (Fed. Cir. 2018) (agency "jurisdiction" errors can be waived; waiver is applied case‑by‑case)
In re NuVasive, Inc., 842 F.3d 1376 (Fed. Cir. 2016) (failing to present arguments to the PTAB deprives the court of the Board’s informed judgment)
In re Watts, 354 F.3d 1362 (Fed. Cir. 2004) (court often declines to consider arguments not raised before the Board)
Monsanto Tech. LLC v. E.I. DuPont de Nemours & Co., 878 F.3d 1336 (Fed. Cir. 2018) (court retains discretion to apply waiver)
Applications in Internet Time, LLC v. RPX Corp., 897 F.3d 1336 (Fed. Cir. 2018) (Congress added the real‑party‑in‑interest provision to protect patent owners from related‑party late administrative attacks)
Freytag v. Comm’r of Internal Revenue, 501 U.S. 868 (1991) (discusses the unfairness of "sandbagging" by withholding jurisdictional objections)