Patent Filings Roundup: Acacia Gets Another Fintiv Boost; More Vape IPRs Filed; Adenovirus PGR Challenge; IP Edge Files Dozens of New Complaints

District court complaints rose to 93 this week, while Patent Trial and Appeal Board (PTAB) cases fell to 28 (27 IPRs [inter partes reviews] and a PGR [post grant review]), a number propped up in part by Google filing a number of petitions against serial assertor Express Mobile, LLC and ZTE filing a few more against the perennial WSOU. Additional Facebook petitions were denied against Western District of Texas assertor, Onstream Media Corporation; Google filed a spate of petitions against longtime serial assertor Express Mobile; and there were a not-surprising-but-still-remarkable number of IP Edge complaints filed last week, as seen below, from a wide range of subsidiaries.

Up in Smoke: R.J. Reynolds Vapor Co. this week hit Altria Client Services with five IPRs provoked by a May 2020 suit in the Middle District of North Carolina on vaping technologies. It’s worth noting here that this is well within the one-year statutory deadline (by at least a month), but that cigarette companies have felt the heavy sting of Fintiv, further complicating the sprawling and big-dollar fight over vaping and smokeless tobacco technologies. British Tobacco and Philip Morris have both challenged patents held and asserted by Altria—a handful earning institution, but many being denied. It will be one to watch to see if the Board again invokes Fintiv here; R.J. Reynolds is repped by Jones Day.

Monarch [Acacia] Petitions Denied on Fintiv: I’ve been reading a fair bit of The Very Hungry Caterpillar to my son—instead, here, we have a situation where, despite being relatively hungry, Acacia-owned Monarch Networking Solutions, LLC keeps earning Fintiv denials, resulting in a four-patent suit steaming toward trial in the Western District. The patents originally came from Orange S.A., the French telecom company, who presumably keeps a backend on the results of the litigation here. The patents did have stop with foreign monetization entity Transpacific IP, and now there’s an ancillary dispute over patent ownership that might obscure the results of the trial. The most recent Fintiv denial is IPR2020-01678 and demonstrates yet again that the biggest beneficiaries of the Fintiv rule have been NPEs, capital funders, and frequent assertors like Uniloc, Acacia and Fortress IP.

Blue Genes: A developing dispute between biotechnology gene therapy companies in North Dakota and IP spun out from University of Pennsylvania took another turn last week when the university (and their spun-out company, who acquired the IP originally from a partnership with GlaxoSmithKline) filed an early PGR of the patent at issue, which is related to AAV8 viral vectors and Adenovirus treatments. The PGR, 2021-00073, without getting into the details of the underlying dispute, is evidence of the narrow Venn diagram of when a PGR makes fiscal and legal sense under the current regime—where a patent has issued and immediately provoked litigation, such that the parties can establish standing on appeal, and it is worth the higher cost and risk of increased estoppel because of various Section 112 or Section 101 challenges the parties might want to include. It’s the rare case where such early action is warranted, and proves out why parties aren’t filing in other cases, where the stars aren’t so aligned.

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