Federal Circuit’s Latest Take in Shockwave

by Dennis Crouch

The Federal Circuit’s decision in Shockwave Medical, Inc. v. Cardiovascular Systems, Inc., No. 2023-1864 (Fed. Cir. July 14, 2025) makes good on the court’s overly-semantic approach to defining the “basis” of inter partes review proceedings — especially with reference to applicant-admitted-prior-art (AAPA).  Recall that under 35 U.S.C. § 311(b) IPRs can be filed “only on the basis of prior art consisting of patents or printed publications.”

The court’s approach in Shockwave turned on whether the petitioner labelled its prior art evidence as “basis” versus “reference.”  In my opinion, this formalistic undermines the IPR system and suggests additional gamesmanship. Here, it produced what I see as an absurd result – where evidence supplying a claim limitation is not deemed a “basis” of the legal challenge.