Patent Filings Roundup: Video Codec Wars, Gaming Industry Stung by Section 325 Discretionary Denial, Remote Surgical Robotics Suit Filed

Patent filings were down ever so slightly last week, with 30 Patent Trial and Appeal Board (PTAB) petitions filed (29 inter partes reviews [IPRs] and one post grant review [PGR], the biggest chunk being Lenovo’s nine IPR filings against Nokia’s standard-essential patents) and 61 litigations. District court filings were driven in part by WSOU against their now-regular defendant, OnePlus Technology (Shenzhen), and in part by another wave of mostly Western District of Texas cases against another six major device manufacturers by Aquis Technologies—a decades-long Texas-based assertor of patents against USB-connection devices (the patents have already seen claim construction at least once; this brings the total number of defendants involved to 20 over the past 10 years.)

Tech Titans Square Off Over Old Streaming Codec: A year ago, Nokia filed suit against Lenovo as part of the very tail-end of licensing efforts around the old and widely adopted AVC streaming video-codec, otherwise known as H.264. Most of that codec and those patents had been licensed successfully through the MPEG-LA pool. As of the filing of that suit, 91% of the industry had adopted it (per Wikipedia). Lenovo waited until the one-year bar to file their many petitions, and filed multiple petitions on some patents, ranking them per the Board’s practice. The patents, which have relevance to the subsequent H.265 standard and the subsequent-subsequent VVC standard, should be closely watched by those in the streaming media industry.

Gaming Industry Patent Benefits from the Board’s Discretion: Sony and seemingly the entire gaming industry are the most recent petitioner-defendants to feel the sting of the Board’s increased use of their discretion to deny institutions without considering the merits, here under the Board’s expanded understanding of Section 325(d). There, the prior art relied on by the petitioner had been cited in an information disclosure statement (IDS), but not otherwise discussed as the basis for any rejection. The majority opinion denied institution under the Becton-Dickinson factors as not pointing to an error in the examiner’s prosecution and consideration of the IDS. The dissenting administrative patent judge (APJ) argued that, without any substantive consideration of the prior art, it should not be said that the office previously considered it.

Sony (and other defendants Epic Games, Take-Two Interactive Software, Microsoft, and Electronic Arts, and Blizzard, mostly in different district courts, though the lead case is in the Eastern District of Texas) is now launching headlong into trial against Infernal Technology, LLC, where claim construction has occurred and they are at the summary judgment stage. Electronic Arts has previously filed and settled two IPR proceedings. Just after the denial, Take-Two pulled the trigger on their own IPR, IPR2021-00056, on the 7,061,488 patent. The two patents at issue relate generally to rendering light and shadow in computer graphics.

Telemedicine Competitors Go to Socially Distanced War: Telemedicine companies American Well Corp. and Teladoc Health, Inc. are headed to court over remote robotic surgery patented technology. American Well acquired InTouch Technologies and a bevy of patents on surgical robotics, naming Dr. Yulun Wang, who, according to the complaint, is known as the “father of modern surgical robotics.” American Well sent a demand letter September 14 of this year on the now-accused patents, and pulled the trigger just over a month later on this suit, per the complaint. Five patents, 7761185, 10471588, 8670017, 10483007, 8179418, are pled.

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