The Secrets Behind an Alleged Patent Quality Assurance-Intel Connection

“For now, Director Vidal’s February 9 Order raises far more questions than it answers, particularly considering it has been nearly 10 weeks since the USPTO completed its search for documents responsive to [IPWatchdog’s] FOIA request but no documents have been provided.”

Does Patent Quality Assurance (PQA) have a relationship with Intel? That is fast becoming the question du jour relating to the saga over the VLSI patents, to which Intel is on the hook for over $2 billion after losing a patent infringement action in district court.

The factual predicate for the belief that there may be some relationship between PQA and Intel stems from the filing of an inter partes review (IPR) challenge on the part of PQA against the VLSI patents responsible for the $2 billion verdict against Intel. There has been a question in whispers behind the scenes about whether and to what extent the PQA challenge to the VLSI patents is a subterfuge because Intel could not challenge the patents in an IPR itself.

Of course, Intel did file a petition to challenge the VLSI patents at the PTAB, but the PTAB used its discretionary authority to deny institution of the challenge because the district court was expected to reach a timely decision before the PTAB could reach its own decision. And now, despite the patents having already survived Intel’s challenges in district court, the PTAB has decided to institute fresh challenges to the patents based on filings by both OpenSky and PQA.

The Case of the Secret Exhibits

But are OpenSky and PQA really acting independently of Intel? In Director Vidal’s initial decision, from October 2022, which found OpenSky to be engaging in extortion, it was determined that Intel was not complicit in OpenSky’s extortionary and fraudulent actions. To date, no similar statement has been made relating to Intel’s complicity with PQA, and rumors and whispers are giving way to confirmation of some secret and as yet undisclosed documents.

It has long been rumored that PQA and Intel have some type of relationship. But documents purporting to explain the existence of such a relationship are now coming to light. Just last week, in a ruling by Director Vidal dated February 9, 2023, in IPR2021-01229, which relates to the IP challenge filed by PQA against the VLSI patents, the issue of whether certain exhibits should be expunged or made public was addressed. In this Order, designed Paper No. 112, we learned that two separate exhibits filed under seal for the eyes of parties and the Board only—Ex. 3029 and Ex. 3030— relate to some documents “possessed by multiple members of the House Oversight Committee, multiple additional staffers on the Senate Judiciary Committee, and the Patents Ombuds Office of the USPTO.”

While we do not know the contents of Ex. 3029 and 3030, sources have separately told IPWatchdog of the existence of a whistleblower complaint in possession of the House Oversight Committee, which allegedly details a relationship between PQA and Intel.

Search for Answers

The rumors of the existence of some type of relationship between Intel and PQA are hardly new. IPWatchdog first learned of the possibility of some relationship between PQA and Intel as early as October 2022. Being notified of such a possible relationship between PQA and Intel, and that Intel was advocating on behalf of PQA at both the Department of Commerce and at the USPTO, rather than report the rumor we decided to seek documents through the Freedom of Information Act (FOIA).

Armed with some information relating to a relationship between PQA and Intel, on November 7, 2022, IPWatchdog submitted a FOIA request to the USPTO seeking “documents, communications, notations, memoranda, records of meetings (including dates of occurrence), approval forms, or signature slips” relating to the following:

1. Input, information, suggestion, or advocacy regarding OpenSky Industries, LLC v. VLSI Technology LLC, IPR2021-01064 and Patent Quality Assurance, LLC et al. v. VLSI Technology LLC, IPR2021-10229 received by personnel at USPTO from Intel Corporation.
2. Requests for information received by USPTO regarding OpenSky Industries, LLC v. VLSI Technology LLC, IPR2021-01064 and Patent Quality Assurance, LLC et al. v. VLSI Technology LLC, IPR2021-10229 from the Office of the Secretary of Commerce and/or staff within the Executive Office of the President.
3. Documents, communications, notations memoranda regarding OpenSky Industries, LLC v. VLSI Technology LLC, IPR2021-01064 and Patent Quality Assurance, LLC et al. v. VLSI Technology LLC, IPR2021-10229 prepared by USPTO for the Office of the Secretary of Commerce and/or staff within the Executive Office of the President.
4. Any records regarding OpenSky Industries, LLC v. VLSI Technology LLC, IPR2021-01064 and Patent Quality Assurance, LLC et al. v. VLSI Technology LLC, IPR2021-10229 between USPTO personnel and employees of the Intel Corporation.

IPWatchdog was notified by the USPTO that documents and other items of information relevant to our request were compiled as of December 2022. “The USPTO FOIA Office has completed its search for responsive records… These records are being reviewed and processed now,” read an email from the USPTO dated December 9, 2022. We were subsequently told in an email dated February 8, 2023, that the USPTO is “still waiting to hear back from DOC regarding a consultation…” So far, no documents or items have been produced to IPWatchdog, nor has any FOIA privilege been claimed.

Much More to Learn

So, what does this all mean? Frankly, the meaning of this bizarre chain of events is murky—at best. What we do know, however, is the following:

1. There is information or documentation that has been presented to the House Oversight Committee and others that in some way relates to the dispute between VLSI and PQA. VLSI attorneys say it is “directly relevant to the proceeding,” which will lead to VLSI requesting additional discovery.
2. Director Vidal did not expunge Ex. 3029 and 3030 from the record, but she also did not order them released to the public. So, for at least the time being, Ex. 3029 and 3030 remain designated as for parties and the Board only.
3. IPWatchdog has sought release of documents relating to Intel’s involvement in the OpenSky and PQA challenges. The USPTO has located documents related to this request. Documents relating to our request have not been turned over pending consultation with Commerce.
4. The time period for documents to be supplied pursuant to our FOIA request has come and gone, and not only have no documents been provided but no privilege has been asserted.

For now, Director Vidal’s February 9 Order raises far more questions than it answers, particularly considering it has been nearly 10 weeks since the USPTO completed its search for documents responsive to our FOIA request but no documents have been provided. It feels like there is much more to learn about a relationship between PQA and Intel, and the reason for so many questions swirling in the open relates to secret filings at the PTAB, a whistleblower complaint that has not been made public, and a long overdue FOIA request.

Obviously, the existence of a relationship between PQA and Intel matters because if the PQA challenge is a subterfuge, and PQA is acting at the behest of Intel, that would be extremely problematic given that Intel is statutorily barred from challenging VLSI’s patents. Such a subterfuge regarding the real party in interest would also raise serious questions about the lack of a duty of candor owed on the part of IPR petitioners.

Things promise to become more interesting. Stay tuned.

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Author: Feverpitch

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