Patent Filings Round-up: IPR on $2.18 Billion VLSI Patent Instituted; IP Edge Filing Patterns Emerge

The post-Christmas filing rush is upon us—a slight dip during the Christmas holiday is normally followed by a end-of-year complaint filing spike, and this year is no different; 72 new filings, most coming just before or after the holiday (with another 50 terminations, as cases settle going into the end of Q4).  There was also a subpar 24 petitions filed (22 IPRs and 2 PGRs).  We are starting to see a trickle of more PGRs, as post-AIA continuation patents issue, currently in litigation, that nonetheless are in the window for the expanded proceedings, but don’t expect ever to rise to much more than a handful every month.  Those IPRs are propped up by further challenges to the now-ubiquitous Fortress IP and Magentar Capital-funded campaigns (here, Scramoge and Netlist) as well as the somewhat-newer funded Staton Techiya LLC campaign [Synergy IP Corp., Staton Capital].  There’s a newish chip campaign against Qualcomm, Apple, Google, and major chip companies by Vector Capital [Future Link Systems]; all in all, a busy holiday period.

One of Two $2.18 Billion VLSI Patents Instituted, Years After Fintiv Denial:  How’s this for Fintiv efficiency?  While it may have gotten lost in the holiday hubbub, one IPR was instituted on one of the two VLSI patents that were the basis of the $2.18 billion judgment against Intel (a second, on the other patent, was denied). Recall that two entities of unknown origin—OpenSky, and then later, a Patent Quality Assurance (or PQA)—both respectively filed copycat IPRs over the two petitions, then denied under Fintiv, that Intel had earlier timely filed against patents asserted against them in the Western District of Texas.

The first copycat filer, OpenSky, did a “straight copycat” and did not secure their own expert or contract with the expert.  This opened the door for PQA to sign an agreement with one of the experts and argue that the expert would not appear for a (cross-examination) deposition for OpenSky, but would for PQA.

The Board wrote in one case that the exclusion was fatal to OpenSky’s petition, but not in the other.  In measured analysis of the facts of both, the Board found the evidence would likely require expert testimony in one case, and that OpenSky had the ability to secure their own expert prior to filing, but didn’t.  Thus, they denied that petition; in the other, PQA erroneously suggested they had secured a fact witness librarian, Dr. Hall-Ellis, for exclusive testimony (they hadn’t); and the other witness there, Dr. Jacobs, had no exclusive agreement with PQA, so they instituted the second.  The mixed decision opens the door for PQA’s petitions to be instituted (if the merits are good).

Of note, all of these cases would have been decided on their merits years earlier but for the Fintiv decision and subsequent ruling, leading one to question whether denial was in the interests of efficiency—in short, whether kicking the can down the road on the merits for one party, versus the rest of the world, made sense.  One of Fintiv’s primary logical flaws was assuming that controversies would always be cabined to the two parties before the Board, and not the rest of the economy open to allegations of infringement.

IP Edge Filings Follow Lock-Step Efficiency: I ran into Robert Heath of RPX at a conference recently, and he shared (and is allowing me to share, with permission) some data supporting what I’ve been observing in the pages of this blog for some time.  He is a data guy like me, and graphed out some insights I thought worth sharing.  IP Edge, the most frequent filer by far once you aggregate their subsidiaries, represents about 20% of all patent filings in the United States, and they virtually never go to Markman, much less trial.  In fact, some 95+% of their cases settle or are dismissed within a year of filing.  Robert noticed like I did that their activity seems to spike (as of 2018) at the end of every month, quarter, and year.  The below graph demonstrates this well.  In fact, it looks like more than 80% of their filings are in the last week of the month, at least for the last few years.

Per Robert, the blue line is total complaints in 2021 to date, which shows the last week of the month filing pattern shows that IP Edge consistently files roughly 50 cases, plus or minus five cases, every month this year.  Filings tend to slow dramatically at the beginning of a month and ramp up near the end, suggesting some kind of quota system.

Anyhow, data is marvelous.   And if this bears out, in the period between Dec. 27 (when I stopped reporting for this update) and the end of the year, we should see another spike rolling into the end of 2021.  Happy holidays!

Image from DepositPhotos
ID: 253404762
Author: Zerbor