Merchant & Gould’s Jonathan Berschadsky and Eric Chad worked with another law firm to successfully defend a challenge at the U.S. Court of Appeals for the Federal Circuit on behalf of Merchant and Gould client, DraftKings, and FanDuel, where the patent holder alleged the Patent Trial and Appeal Board (PTAB) incorrectly invalidated claims due to a flawed claim construction. While the three-judge panel held the PTAB’s claim construction was not entirely correct, it was only “harmless error” because substantial evidence still supports the PTAB’s finding that the claims in the patent would have been obvious over prior art. Ten patents in total were asserted against DraftKings in the underlying lawsuit. Merchant and Gould successfully invalidated 7 of the 10 patents early on in a motion to dismiss before invalidating the remaining three in IPRs. The patent owner did not appeal one of the IPRs and the remaining IPR decision is still under appeal at the Federal Circuit.