Patent Filings Roundup: Litigation Finance Disclosures in Delaware Standardized; Impossible Burger Patent Challenged; Slew of Discretionary Denials

With an average 33 Patent Trial and Appeal Board (PTAB) filings (one post grant review, the rest inter partes reviews[IPRs]), a relatively high number (89) of district court terminations (including some high-profile settlements), and a somewhat low number (63) of suits this week, we are rolling into May. Chief Judge Connolly of the U.S. District Court for the District Court of Delaware  filed a standing order in all of his cases requiring litigation funding disclosures; there were more filings by more Magentar entities (who, by last count, are up to 15 high-profile litigation funded campaigns), and more IPR counters; and still more IPRs (22 or 23) in the Israeli-based Bright Data assertion campaign. The patents there are a range, but are based, broadly, on Internet connectivity.

And of course, the third VLSI trial (which also is based on patents denied under Fintiv—over two years ago, on a scheduled 2020 trial date) was cancelled on the second day, when Irell & Manella reported members of its trial team tested positive for COVID-19. Oddly, no one seems to be reporting on that aspect of the Austin-based trial: had those IPRs been instituted, they would have been completed, and likely the appeals would have run their course at this point.

Judge Albright and his new magistrate presided over the transferred-to-Austin trial; to my knowledge no reexaminations or IPRs have been filed since those denials. Reschedule looks likely for October or later.

Litigation Finance Disclosure Requirements Picking Up Steam: The District Court of Delaware’s Chief Judge Connolly issued a standing order requiring parties before him to disclose litigation financing, interested parties, and the names of “every owner, member and partner of the party, proceeding up the chain of ownership until the name of every individual and corporation with a direct or indirect interest in the party has been identified.” It goes into detail, and appears based on the New Jersey order from the middle of last year. With Connolly adopting it, it seems a matter of time before the other Delaware judges follow suit.

Mission Impossible Burger: Call it a fake-food fight—the company behind the Impossible Burger sued competitor Motif for patent infringement in Delaware; Motif has thrown back a rather detailed IPR challenge dissecting their claims and arguing that “replica” or fake meat prodcuts trace back centuries.  Soylent Green was not cited as prior art, though it springs to mind; either way, these faux burgers are real big business. The pleadings are, predictably, meaty.

Slew of Same-Day Petition Denials under the April 2019 TPG Update: Perhaps predictably, petitioner SolarEdge Technologies has had at least seven IPRs denied under 314(a) Director “discretion” based on filing multiple petitions on the same day.  One challenge was instituted on each of two patents; another seven petitions split between the two were summarily denied under the updated Trial Practice Guide “guidance” that one petition is generally sufficient. Recall that that particular practice was launched by an update to the TPG filed on the USPTO’s website without notice and comment or much discussion; it’s unclear whether or how such policy statements bind administrative bodies, but practically, the one-petition rule stands.

Image Source: Deposit Photos
Author: Zerbor
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