Patent Filings Roundup: Costco Drones on in District Court; J&J Laser LASIK Patents Challenged by Competitor; Quiet Storm Vector Capital Continues to Cash in on Chip Assertions

The U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB) had a light week, with 23 patent filings, all inter partes reviews (IPRs), including a host of Volkswagen IPR petitions filed against apparent Stratosaudio, Inc. making up the biggest single chunk. Amneal provoked, and has now received, an abbreviated new drug application (ANDA) suit by CMP Development over their Orange Book-listed CaroSpir® products and potential generic challenge; Lenovo had some Interdigital IPRs denied, some granted, this week, and  Google filed IPRs against another Dominion Harbor subsidiary, Soverign Peak Ventures, LLC.

The Board denied at least three petitions under Section 325(d) for raising art or arguments the same or similar to those raised previously. In district court, filings were down as well, with 56, slightly less than the annual average, with another tranche of Jeffrey Gross filings on his newer AuthWallet campaign and a smattering of other repeat players and one-off competitor filings.

Litigation Funded Semiconductor Campaign Continues to Roll Under the Radar: My father was from rural Arkansas and had all kinds of backwoods phrases that wormed their way into daily life. One of his favorites was “pigs get fat, hogs get slaughtered.” Put another way, there’s usually plenty of pie to go around, but it’s those chasing the biggest numbers and the splashiest actions that often bear the brunt of the negative attention—it’s more profitable to be the No. 2 soda or the No. 3 automotive brand if the industry leader becomes a lightning rod for negative attention. Well, certain litigation funders like Vector Capital Corporation are seriously benefitting from that safe-in-your-shadow effect these days. While conversation has turned to Fortress IP and their splashy jury trials and controversial portfolio acquisitions (Theranos, Finjan, Uniloc, etc.), other capital funders like Vector Capital Corporation have been more quietly raking in the capital, making tidy profits off of litigation and assertion around the semiconductor zone. The latest filings in Monterey Research and Future Link Systems can attest to that—the campaigns continue to roll, continue to settle, and have likely drawn major third-party settlements with the likes of RPX or other joint efforts. Just more proof that the quiet storm is the one you need to look out for—and Vector and their ongoing campaigns are ones to to watch.

Droning on, Costco Edition: They’re not the Wright brothers, but according to the allegations in various complaints, Steve and Jeff Rehkemper have made more than $1 billion dollars in the toy helicopter/plane/drone industry over the past decades. They entered into a contract with various largescale toy suppliers, one of which was Spin Master, a contract for (effectively) 3% of all sales royalties on which they alleged Spin Master defaulted for certain radio-controlled toys.  They terminated for nonpayment in 2008 and an auditor in 2009 found missing royalty payments, per court documents. That earlier-filed case resulted in summary judgment for Rehco, LLC (the suiting/owning entitiy) and went all the way to the Federal Circuit, there resulting in a panel of Judges Prost, Dyk, and Moore affirming the SJ and the Court denying rehearing.  Meanwhile, Rehco moved on to non-contractual patent infringement claims, reaching out to at least Costco for selling or making products covered by at least one of their patents—the action filed this week—on U.S. Patent 7,100,866.  See Rehco, LLC v. Amax Group USA, LLC * Costco Wholesale, 4:21-cv-01278.

LASIK Laser Cataracts Competitor Case Heads to Board: Johnson & Johnson has long been known as a lion in the field in terms of protecting their IP and providing innovative solutions for  a diverse array of product categories.  One of those categories is advanced computer-assisted laser cataract surgery.  In late September of 2020, J&J (through their subsidiary Amo Development LLC] brought suit against major competitor Alcon Inc. for allegedly infringing SEVENTEEN U.S. patents and dozens of copyrighted software versions related to these surgical techniques. J&J provided detailed information in the complaint about how this computer-assisted methodology revolutionized the field, ultimately resulting in the FDA approving their Catalys® Precision Laser System as well as an associated LASIK Laser.  Alcon competed in the tight and growing field, and marketed a LenSx system that included laser eye surgery for LASIK.  Now, almost a year later, Alcon has pulled the trigger on at least a few IPRs on some of the 17 patents (four to date), though it’s unclear if that is part of a broader litigation defense strategy and if they intend to challenge the other 15 or so (asserted) assets. No word yet on all the copyrighted code claims, but it looks like a really interesting competitor-competitor suit for the ages, albeit a laser-focused one.