High Value Disputes Spawning Wild-West Antics
I previously explained how Fintiv discretionary practices had spawned a new, cottage industry. That is, with fully developed PTAB petitions being available to the public — denied only as a matter of discretion unique to the original filer— profiteers formed to simply refile such petitions. The apparent goal being to leverage the publicly available petition materials where high-value verdicts had been subsequently secured on the subject patent. With IPR institution leverage (or threat thereof) co-pending with a high-value verdict, this business model presumes that a patent owner would be open to a quick cash settlement.
One such profiteer, a company identifying itself as “Open Sky Industries,” recently leveraged early petition materials of Intel that pertained to its patent dispute with VLSI. That dispute went to trial in the district court after Intel’s IPR petitions were denied under Fintiv. At trial, a $2 billion+ verdict was entered. Thereafter, Open Sky was successful in refiling Intel’s IPR materials, getting trials instituted on the subject patents with little to no cost or investment of its own. The propriety of such re-filing practices is subject to an outstanding POP panel request.
If the optics of this practice weren’t bad enough for the PTAB….it has just gotten worse.
Continue Reading PTAB Needs to Immediately Check Unethical Practices