Posts Tagged: "Unified Patents"

One of the major challenges when licensing, transacting, or managing Standard Essential Patents (SEPs) is that there is no public database that provides information about verified SEPs. Standard-setting organizations (SSOs) such as ETSI (4G / 5G), IEEE (Wi-Fi), or ITUT (HEVC/VVC) maintain databases of so-called self-declared patents that are required to be licensed pursuant to a fair, reasonable and non-discriminatory…

In early October, social networking firm KinectUs LLC filed a lawsuit in the Western District of Texas alleging claims of patent infringement by Bumble Trading, LLC, the operator of the popular Bumble dating app. In the suit, KinectUs accused Bumble of infringing upon claims of six patents that protect systems and methods for connecting mobile device users via a collaboration system that enables users to connect with other users based on search parameters like common interests or location data. KinectUs’ infringement allegations focus on Bumble’s platform, which allows mobile device users to connect with others based on similar parameters. While the actual analysis of whether Bumble’s user matching system infringes claims of the ‘428 patent would normally require at least a Markman hearing and some discovery, certain members of the U.S. patent community would prefer to harness the power of crowdsourcing to make this determination. IP litigation risk management firm Unified Patents is hosting a Patroll contest seeking prior art to invalidate the ‘428 patent owned by KinectUs. U

The Western District of Texas continues to explode in popularity with non-practicing entities (NPEs); an operating company is the most prolific filer of patent disputes in district court for the first time; and Patent Trial and Appeal Board (PTAB) filings are up by 16%, found Unified Patents’ Q3 2020 Patent Dispute Report. Despite the pandemic, both district court and PTAB filings are up, with combined patent disputes on track to increase by 12.7% over 2019, said the report. It added: “The third quarter saw a 13.7% decrease in litigation from last quarter, but assuming this stays the same, 2020 litigation is set to reach its highest level since 2017, largely driven by an increase in NPE litigation.”

In late June, Unified Patents published the findings of an economic report conducted by consulting firm The Perryman Group on the supposed impacts of validity trials conducted under the America Invents Act (AIA) at the Patent Trial and Appeal Board (PTAB) on the U.S. economy. Unsurprisingly, the report is very bullish on the effects of the AIA, and Perryman pegs the positive impact of the AIA and the PTAB at $2.95 billion in terms of increased gross domestic product, $1.41 billion in increased personal income and 13,500 of additional job-years of employment. Careful observers of the U.S. patent system, however, will note that the data only does a good job of examining one side of the PTAB’s impact.

Apologies for taking last week’s Father’s Day week off—here’s hoping you all had a restful week with your families and friends and are now gearing up for the Fourth. It was a relatively quiet week in the District Courts, with just 52 new patent complaints filed and 28 petitions, two post grant reviews (PGRs) and 26 inter partes reviews (IPRs). This week included Amazon filing four petitions against Freshub scanner patents; Verizon filed a number of petitions against Huawei, presumably in response to their widely publicized billion-dollar licensing demands; Dolby filed against Intertrust patents; there was plenty of continued IP Edge activity; but otherwise, a relatively quiet week; that said, the following week’s numbers (which stop at Monday’s reporting) contain a slew of new cases by Bausch and Lomb, as well as a phalanx of 15 WSOU complaints on fifteen independent patents not previously litigated, all in individual complaints, all in the Western District of Texas, and all against Google. 

There were only 16 new PTAB filings—all inter partes reviews (IPRs)—this week, with a whopping 70 new district court complaints filed.  Those numbers were driven primarily by: 1) frequent filer WSOU’s adding the first of what will likely be a tranche of new complaints (as is their wont) against U.S. manufacturer Dell to their ongoing campaigns against Huawei, ZTE, and Microsoft; and 2) by a sprawling suit on putative 2G and 3G patents by European patent aggregator SISVEL against at least 10 new targets, as well as various small-company disputes and the usual NPE activity.

This week, Patent Trial and Appeal Board (PTAB) filings are back up, with four post grant reviews (PGRs) and 37 inter partes reviews (IPRs), while there were 83 district court complaints; the district court numbers skew high because of the WSOU entities’ proclivity for filing dozens of independent complaints per defendant, as discussed below. This week saw a major suit from PayPal against an online coupon competitor, allegations of abusive demand letter practices by BlackBerry, and even what appears to be a Matrix-themed gag filing in Delaware. Lockdown doesn’t seem to have slowed down suits in the slightest, despite what has been happening in other industries; only time will tell how earnings reports and market dips affect the patent marketplace longterm, though if history is any guide, litigation and patent assertion will likely rise in a recession economy.

Is there something in the water this week? While Patent Trial and Appeal Board (PTAB) filings were up slightly (the spike due entirely to 14 new petitions from Comcast against Rovi in their massive ongoing licensing dispute), the district courts—particularly the Texas branches—had a banner week, with 127 new filings—54 of which were filed Friday, April 24 alone. The majority, 31, were filed in Texas courts.
The 54 new complaints included a spate of filings by entities controlled by IP Edge and Leigh Rothschild, more VoIP-PAL suits, and some high-profile standard-essential patent infringement cases by Conversant Wireless against Tesla. They also included 16 new suits filed by a new entity, as described below.

Is Unified a war profiteer?  Of course, they are. But they are only one cog in the larger worldwide scheme of the most powerful multinational corporations whose goal is to monopolize technologies by destroying patents and innovation. This recklessness to preserve their monopolies has brought utter destruction to our nation’s innovation engine – startups.  

With Coronavirus delaying prosecution, preventing courts from empaneling juries, and keeping attorneys home with the kids, you would think filings would have dropped; instead, we saw a slight uptick this week. We saw Elizabeth Holmes’ Theranos patents reemerge, witnessed the start of a battle between in-flight WiFi companies, and even watched sheets of sapphire sold to the government stay hot.

Every week, Unified Patents compiles all Patent Trial and Appeal Board (PTAB) and district court filings, lists them, and releases them daily to subscribers. Each Wednesday, IP Watchdog will post the list, with a handful of interesting cases highlighted with context. To see the docket, filings, and learn more about the case, click on the links provided below. Litigation financing or patent aggregator parent data is provided where known and confirmable. The results appear in chronological order, below.

As I noted in part one of my talk at the IPWatchdog Patent Masters Symposium, the validity statistics for SEPs do not look very good at first glance. Thus, according to a 2017 PricewaterhouseCoopers study, plaintiffs in U.S. courts (ignoring patent type) have on average a 33% chance of success—only a 27% chance in the case of telecommunications patents. This chance of success is probably overstated for Standard Essential Patents (SEPs), based on the easy availability of prior art. Indeed, according to RPX’s 2014 study, in the United States, SEPs are likely to be less than half as successful as non-SEPs.In my talk, I pointed to the high invalidation rates in Europe to buttress my point that, at first glance, SEPs seem particularly vulnerable to validity challenges. Thus, in Germany, a supposed nirvana for patent assertion, the authors of the study “Patent Paper Tigers” reviewed the case law of the German Federal Patent Court and the German Federal Court of Justice in nullity matters in the period from 2010 to 2013 and found that: The nullification rate of all Senates of the German Federal Patent Court is 79.08% in total; and the nullification rate at the German Federal Patent Court regarding Software and Telecom patents which are (currently) of particular relevance from an economic point of view is 88.11%. Returning to the point made in the first part of my talk, having noted that most SEP nullification comes from obviousness, and not novelty, there should be no public interest exception to my argument that: unprovoked—that is, without first having made a FRAND offer or counteroffer—serial nullification of SEPs is contrary to the duty to negotiate in good faith and should remove a party’s defense against an injunction to SEPs.

Now, there is a flaw in this theory, and that is that, in the past few years, third parties have emerged that will—for their members or other contracted entities—kill patents.

Last week, the Patent Trial and Appeal Board (PTAB) issued 39 decisions regarding petitions for inter partes review (IPR) patent validity proceedings, instituting 26. Eight of those proceedings involve major tech firms Samsung, ZTE, Huawei and LG Electronics, all of which won on motions to join previous Google IPRs filed to challenge a pair of Cywee Group patents. Qualcomm also faces a trio of IPRs brought by Intel to challenge the validity of a patent involved in the now-settled legal battle with Apple.

On Tuesday, November 27th, the Patent Trial and Appeal Board (PTAB) issued a redacted version of a decision to institute an inter partes review (IPR) proceeding petitioned by Unified Patents to challenge the validity of patent claims that have been asserted in district court against at least one of Unified’s subscribing members. The PTAB panel of administrative patent judges (APJs) decided to institute the IPR despite the patent owners’ assertion that the petition should be denied because Unified didn’t identify all real parties in interest (RPIs) including members of Unified’s Content Zone. The charade that Unified is the only real party in interest and simply acts in uncoordinated ways and not at the behest of those who pay for them to challenge patents continues, at least at the PTAB.