Patent Filings Roundup: Judge Albright Hits Back at Federal Circuit; APJ Urges Board to Consider Litigiousness Under Fintiv; PTAB Reverses Fintiv Denial after ITC Termination

District court patent filings this week remained slightly elevated, at 78, with a fair number of Rothschild, Raymond Anthony Joao, and Jeffrey Gross entities filings complaints; but oddly—after their explosion of new litigations the past two weeks—there was not a single IP Edge case to speak of. The Patent Trial and Appeal Board (PTAB), for its part, was up slightly too, with 37 new petitions (one post grant review and 36 inter partes reviews).

Speaking of Jeffrey Gross, though it consists of two patents issued in 2013, the Jeffrey Gross-run Auth Token LLC appears to have waited until the sunset of covered business method (CBM) petitions to turn around and slap virtually all of the nation’s banks, credit card companies, and some financiers with a lawsuit over two pretty identical point-of-sale authentication patents. The cases now include Mastercard, Visa, M&T Bank, PNC Bank, Regions Bank, TD Bank, Trust Financial, and US Bancorp (US Bank), among the 32 defendants thus far.  But the real action was between the Federal Circuit and Judge Albright, as the words and rulings of each become increasingly confrontational toward the other.

Judge Albright Thumbs His Nose at the Federal Circuit: One thing is for certain—Judge Albright does not mince words. As we all saw, on Monday, Judge Albright was again held to have abused his discretion three more times on motion-to-transfer practice.  He has now been versed on mandamus at least 21 times in his short time on the bench—including more times in a five-month period, 16, than most judges have in a lifetime of federal service. As far as I know, he has been mandamused more than any other judge in the history of the federal judiciary, or is at least on pace to be, and has certainly been mandamused the most in a single year. As of October, his overall grant rate—the rate of mandamus orders before the court per petitions actually filed—was 56.5%, and is now approaching 75%.

As a recent article noted, these mandamuses “raise an interesting question: Does Judge Albright care?” That article notes that in another order of his, Judge Albright called the Federal Circuit “out of touch” with modern patent litigation.

In the most recent grant of a motion to transfer on remand from one of these orders, Judge Albright signaled not only that he disagreed with the Federal Circuit, but that he is in open contempt of their rulings, accusing them of wholly disregarding binding precedent, and ignoring many of their dictates. For example, regarding the supposed 100-mile rule, he writes that the Federal Circuit has rendered it “nugatory,” “nullified” it, and “neutered” it, in addition to “altogether disregard[ing]” it, citing Eastern District of Texas cases to support his proposition

He argues that their precedential decision in In re Juniper Networks, Inc., “is out of step with decades of jurisprudence springing from courts in the Fifth Circuit and elsewhere,” citing only a 2007 Eastern District and a 1992 Southern District of Texas case. Later in the opinion, he also does exactly what most of the mandamus orders have said he should not do, and doubles down on his own time-to-trial in both his orders and the few cases he has tried to date (selectively omitting the ones that have longer, and highlighting the ones he himself called early in the schedule) in a lengthy string site on page 17.  He blames COVID for delays in California courts but not his own; and he again cites his aggressive trial schedule, despite a thundering of opinons from the Federal Circuit admonishing him for doing so.

He adds that the Federal Circuit’s ruling “directly counters the Federal Circuit’s longstanding sentiment that “[r]ecognition must be given to the strong public policy favoring expeditious resolution of litigation.”

In in his analysis, he refuses to look at the nature of those controlling the plaintiff-entity LLC (here Acacia, certainly not a Texas company) but goes to great pains to look at the plaintiffs. He even goes so far as to say that because the LLC is a Texas LLC that means Texas has a local interest in resolving the case, which is directly contrary to the Federal Circuit’s lengthy arguments in their various orders.  One thing is certain—Judge Albright cares little for his reviewing court.

Another ITC-Fintiv Denial, With a Twist: In another pair of PTAB Fintiv denials issued this week, the majority found that, given the pending International Trade Commission (ITC) case, among other factors, they were going to exercise their discretion and denied both petitions, over another fascinating concurrence by APJ Crumbly.  He argues, under the Board’s discretion, that the patent owner’s litigation history is as relevant as trial dates or overlap for a discretionary Fintiv analysis based on the efficiency and integrity of the system. He writes:

“I would take into consideration the fact that Patent Owner has asserted the ’854 patent, as well as several related patents, against a multitude of defendants in multiple proceedings in various district courts and the ITC. This suggests to me that, in the “holistic view,” the “efficiency and integrity of the system are best served” (Fintiv at 6) by instituting review here before the Board, and resolving questions as to the patentability of the challenged claims in one proceeding, rather than in the various proceedings involving the ’854 patent scattered across the country in various tribunals.” The lead case I quote from is Satco Prods. Inc. v. Regents of U. of Cal., IPR2021-00794, Paper 14 (Nov. 14, 2021).  The patent, for what it’s worth, is U.S. 10,593,854.

Board Vacates Fintiv Denial after Patent Dropped from ITC:  In a really interesting order, this week a PTAB panel sua sponte vacated a denial under their Fintiv-ITC practices after the petitioners let the Board know the patent had been dropped from the ITC case, and thus the basis of denial had evaporated. It would be interesting to know just how many meritorious petitions have been denied under Fintiv, only to have their cases settle, trial schedules pushed back, cases transferred, or some other event that eliminated the basis of the original ruling—and how many wish their panel had followed suit.  Order available here.  The case was handled by Smith Baluch.

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