Dk Crown Holdings Inc., Fka Draftkings Inc. v. Ag 18, LLC

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DK CROWN HOLDINGS INC., FKA DRAFTKINGS
INC.,
Appellant
v.
AG 18, LLC,
Appellee
______________________
2024-2078
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2022-
01446.
______________________
Decided: May 6, 2026
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ELIOT D AMON W ILLIAMS , Baker Botts LLP, Washing-
ton, DC, argued for appellant. Also represented by J AMIE
ROY L YNN, T HOMAS CHISMAN MARTIN, ANDREW D AVID
WILSON; L ORI D ING, Houston, TX; G EORGE HOPKINS G UY ,
III, Palo Alto, CA.
J ONATHAN I RVIN T IETZ, Perkins Coie LLP, Washington,
DC, argued for appellee. Also represented by ANDREW
Case: 24-2078 Document: 56 Page: 1 Filed: 05/06/2026

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DK CROWN HOLDINGS INC. v. AG 18, LLC 2
D UFRESNE, Madison, WI; P ATRICK J OHN M CK EEVER , San
Diego, CA.
______________________
Before CHEN, HUGHES , and STOLL , Circuit Judges.
CHEN, Circuit Judge.
This is an appeal of an inter partes review (IPR) final
written decision by the Patent Trial and Appeal Board
(Board), which found that most of the challenged claims of
U.S. Patent No. 9,978,205 (’205 patent)—claims 1–17 and
19–30—are unpatentable as either anticipated or rendered
obvious by the asserted prior art. DraftKings Inc. v. AG 18,
LLC, No. IPR2022-01446, 2024 WL 1075310, at *41
(P.T.A.B. Mar. 12, 2024) (Decision). For challenged
claim 18, however, the Board found that the IPR petitioner,
DK Crown Holdings Inc., fka DraftKings, Inc. (DK), failed
to prove that claim’s unpatentability and declined to con-
sider a late-raised ground not contained in DK’s petition.
DK appeals as to claim 18. For the reasons below, we af-
firm.
BACKGROUND
The ’205 patent is titled “Location Based Restrictions
on Networked Gaming” and generally relates to “peer-to-
peer” gaming systems that restrict a player’s online gam-
ing activity based on the player’s location.
Relevant to this appeal is claim 18, the only challenged
claim not found unpatentable by the Board. Claim 18 de-
pends from independent claim 12 and its dependent claims
15, 16, and 17. Claim 18 reads:
The gaming system of claim 17, wherein the limits
on wagers changes wagering to non-monetary
based wagering and compensating the player with
the player winnings is compensating the player
with no monetary winnings.
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DK CROWN HOLDINGS INC. v. AG 18, LLC 3
’205 patent col. 17 ll. 45–48 (emphases added).
In its IPR petition (Petition), DK asserted three rele-
vant grounds of unpatentability. “Grounds 1 and 2” relied
on Bryson1 alone, while “Ground 3” relied on Bryson in
view of Schlottmann.2 DK challenged claim 18 only under
Grounds 1 and 2. Its Ground 3 challenge was directed only
at claims 15–17. J.A. 288.
After the Board instituted inter partes review, DK, in a
footnote to its petitioner’s reply (Reply), requested the
Board to now analyze claim 18 under Ground 3 “instead of
Grounds 1/2.” J.A. 830 n.5.
In its Decision, the Board found all claims from which
claim 18 depends unpatentable; independent claim 12 was
anticipated by Bryson, and dependent claims 15–17 were
rendered obvious in view of Bryson and Schlottmann. 2024
WL 1075310, at *41. For its claims 15–17 analysis, the
Board found that a skilled artisan would have been moti-
vated to combine Bryson with Schlottmann with a reason-
able expectation of success. In addition, the Board found
claim 10, which claims similar “non-monetary limitations”
to claim 18, unpatentable under 35 U.S.C. § 103. Id.; see
also ’205 patent col. 16 l. 66 – col. 17 l. 3.
The Board, however, rejected DK’s request to analyze
claim 18 under Ground 3 (Bryson and Schlottmann) “in-
stead of Grounds 1/2” (Bryson alone). The Board explained
that DK’s request “exceed[ed] the proper scope of a Peti-
tioner Reply” because DK “improperly s[ought] to add a
new prior art reference against claim 18 (i.e., Schlottmann)
to fill a prima facie gap in the Petition as to claim 18.” De-
cision, 2024 WL 1075310, at *13 (citing Netflix, Inc. v.
DivX, LLC, 84 F.4th 1371, 1376–78 (Fed. Cir. 2023)). In
1 Bryson refers to U.S. Patent No. 8,460,109.
2 Schlottmann refers to U.S. Patent Application Pub-
lication No. 2007/0298857.
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DK CROWN HOLDINGS INC. v. AG 18, LLC 4
other words, although DK’s petition relied on Schlottmann
as disclosing certain limitations in claims 15–17, DK’s pe-
tition did not do the same for its challenge to claim 18,
which depends from claims 15–17. Because the claim ele-
ments recited in claims 15–17 are necessarily limitations
of claim 18, and DK’s claim 18 challenge in its petition
(Bryson alone) never made a case for why Bryson teaches
or suggests the limitations of claims 15–17, the Board
found that DK failed to prove claim 18 was unpatentable.
Id. at *20. And because DK’s petition did not assert
Schlottmann against claim 18, the Board concluded that
DK’s Reply footnote seeking to add Schlottmann to its
claim 18 challenge exceeded the proper scope of a reply. Id.
at *13.
Thereafter, DK filed a Request for Director Review of
the Board’s refusal to analyze claim 18 under Ground 3,
which the Director denied.
DK timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(4)(A).
D ISCUSSION
On appeal, DK argues that the Board abused its discre-
tion by failing to analyze claim 18 under Ground 3 when it
otherwise made all factual findings necessary to determine
claim 18 unpatentable. Specifically, DK asserts that its pe-
tition contained a “clerical error” by failing to assert
Ground 3 against claim 18, and, because it is “obvious” that
DK attempted to assert Ground 3 against claim 18 in its
Petition, the Board’s refusal to correct that error was itself
reversible error. Appellant Br. 2. DK also asserts that
claim 18 is unpatentable under collateral estoppel. We dis-
agree with both arguments.
We review the Board’s rejection of a new argument on
reply for abuse of discretion. See Yita LLC v. MacNeil IP
LLC, 69 F.4th 1356, 1365 (Fed. Cir. 2023).
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DK CROWN HOLDINGS INC. v. AG 18, LLC 5
As to DK’s first argument, we agree with the Board
that DK asserted a new ground of unpatentability in its
Reply footnote against claim 18 by seeking to add
Schlottmann to its challenge. That much is clear from re-
viewing the content of DK’s petition, including its sum-
mary scorecard of its petitioned-for grounds:
J.A. 288.
Our case law explains that the Board cannot entertain
theories absent from the petition. See, e.g., Netflix, 84
F.4th at 1377. That DK could have relied on Schlottmann
as part of an unpatentability challenge against claim 18
does not mean that its petition must be read in such a man-
ner. Given our repeated warnings to the Board to not stray
from the grounds of the petition, it was no abuse of discre-
tion to reject DK’s footnote request. Indeed, DK asserted
its new argument after institution. Moreover, DK did not
move to amend its Petition to correct its oversight. DK’s
footnote is also not responsive to any argument in AG 18’s
patent owner response. And the footnote fails to explain
why the Board should entertain a new ground against
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DK CROWN HOLDINGS INC. v. AG 18, LLC 6
claim 18 after institution. We therefore find no abuse of
discretion.
DK counters that, under Voice Tech Corporation v. Uni-
fied Patents, LLC, it did not present a “new theory” of un-
patentability in its Reply footnote and that its Petition
“fully raised” Ground 3 against claim 18. Appellant Br. 22–
23 (citing 110 F.4th 1331 (Fed. Cir. 2024)). Voice Tech,
however, is inapposite. Although Voice Tech involved typo-
graphical errors in the petition, the petition there identi-
fied, via cross-reference, the substantive argument the
petitioner intended to assert. 110 F.4th at 1338. In con-
trast to Voice Tech, DK’s analysis of claim 18 in its Petition
references no other argument. Indeed, the Petition fails to
indicate anywhere that DK intended to assert Ground 3 or
Schlottmann against claim 18.
DK’s collateral estoppel argument also fails. Specifi-
cally, DK argues that because the Board invalidated other
claims, i.e., claims 10, 12, 15, 16, and 17, which, in the ag-
gregate, contain all the limitations of claim 18, it follows
that claim 18 is invalid under collateral estoppel. We dis-
agree. As an initial matter, DK’s analysis does not meet its
burden to prove collateral estoppel applies based on claim
18’s similarity to an invalidated claim, as required under
our precedent. See Ohio Willow Wood Co. v. Alps South,
LLC, 735 F.3d 1333, 1342–43 (Fed. Cir. 2013). This court,
moreover, has never applied collateral estoppel in the man-
ner DK suggests—by cobbling together limitations from
disparate claims to replicate another claim. Based on DK’s
arguments, we see no persuasive reason to do that here.
CONCLUSION
We have considered DK’s remaining arguments and
find them unpersuasive. For the foregoing reasons, we af-
firm.
AFFIRMED
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