New NPE Campaign Dominates December; Calls Against Fintiv Continue
Looking back over the final few weeks of 2023, patent filings were typical at the Patent Trial and Appeal Board (PTAB) and slightly above average in district courts, with the last weeks of the year seeing 68 district court complaints filed and 25 new PTAB petitions [December 11-17]; followed by 57 district court complaints filed and 29 new PTAB petitions [December 18-24]; and wrapped up with 24 district court complaints filed and 13 new PTAB petitions [December 25-31].
At the PTAB, challenges were filed against a number of entities, including Softex LLC [associated with Fortress IP], Entangled Media LLC [associated with LIT-US Chisum 22-B], and Aptiv Technologies Ltd [associated with Aptiv PLC]. The Board denied institution in 11 IPRs, 10 of which were denied on the merits, while the sole procedural denial was under § 325(d). The Board instituted 43 challenges, including two Amazon IPRs challenging patents asserted by Lexos Media IP [associated with Lexos Media, Inc.]. In the district court, there were a number of complaints in a new campaign by Gamehancement LLC [associated with Jeffrey M. Gross], as well as in campaigns by Patent Armory Inc [also associated with Jeffrey M. Gross], Aml IP LLC [associated with DynaIP], Alto Dynamics LLC [associated with IP Investments Group LLC], Display Technologies LLC, Speech Transcription LLC, and Symbology Innovations LLC [all associated with Leigh M. Rothschild], Artax LLC and Recog IP LLC [both associated with IPValuation Partners, LLC], and Iarnach Technologies Ltd [associated with Magnetar Capital and Longford Capital].
Magnetar Capital and Longford Capital Subsidiary Loses Patent Claims in IPRs
Apple saw success in two IPRs challenging patents asserted by Aire Technology Ltd [a subsidiary of Magnetar Capital and Longford Capital]. The Board issued two final written decisions finding that all changed claims of Aire Technology’s digital payment patents were unpatentable. In a third IPR, an additional claim was held unpatentable while several claims survived the challenge.
Other Magnetar Capital and Longford Capital subsidiaries are facing additional challenges at the PTAB as well: Apple had a challenge against subsidiary Sonrai Memory Ltd instituted and Fortinet had two challenges against subsidiary Lionra Technologies Ltd instituted, while Vmware filed two IPRs challenging Lionra Technologies Ltd. Three additional challenges against Lionra Technologies, brought by Cisco and instituted in September and October, were terminated.
Gamehancement LLC Kicks Off New Campaigns
Gamehancement LLC [associated with Jeffrey M. Gross] has filed thirty complaints since December 6, asserting nine patents across a number of campaigns. The patents at issue span a number of technologies, including biometric identification, packet switching and management, image capture, file security and protection, and display and visual data control. The filings are concentrated in the Eastern District of Texas (fifteen complaints) and the Western District of Texas (thirteen complaints), with the Southern District of Texas (two complaints) rounding out the filings. Interestingly, five of the Gamehancement cases have already been terminated; four that were filed in the western district and one that was filed in the eastern district. The asserted patents are among 48 properties assigned to Gamehancement in August from Mind Fusion, LLC, and were previously part of the Intellectual Ventures LLC portfolio.
More Filings in the Apple-Masimo Saga
In the latest chapter of the Apple-Masimo saga, Apple has filed eight challenges against Masimo’s patents in IPRs. This comes as the Masimo’s ITC case against Apple is again in the spotlight for the currently-stayed ban on the import and sale of some Apple Watches. The ITC Final Determination on October 26 kicked off a 60-day Presidential Review Period, which expired on December 25. Apple has appealed the ITC Final Determination to the Federal Circuit, where the has granted an interim stay while considering a motion for a stay pending appeal. The latest patents challenged by Apple were not involved in the ITC proceeding, but instead were asserted in a separate litigation currently taking place in the District of Delaware.
Calls For the Repeal of the Fintiv Rule Continue
The former U.S. Attorney General, Michael Mukasey, and former U.S. Solicitor General, Donald B. Verrilli Jr., are calling for a full repeal of the super-statutory “discretionary” Fintiv denial rules and other changes proposed to be codified in the USPTO’s unpopular ANPRM [subscription required] of this year. The column explores how the Fintiv rules allow for non-practicing entitles to abuse the patent system, including cases where discretionary denials under Fintiv allowed for sizable jury verdicts on patents later found to be invalid by the PTAB. The two go on to call for “a reset at the USPTO,” both with regard to the Fintiv rule as well as the proposed rules in the ANPRM announced back in April. It remains to be seen how the USPTO will move forward on rule-making, and for how long the Fintiv rule will continue to be in effect.
Links to the cases discussed above and more are available in the Weekly UP, which can be found here.
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Matthew Beck
Matthew Beck is Senior Patent Counsel at Unified Patents, LLC where he handles PTAB filings. Prior to Unified, Matthew was a litigator in the Washington DC office of Haynes and […see more]
