DivX, LLC patent determined to be likely invalid

On February 10, 2020, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against US Patent 8,139,651, owned by DivX, LLC (a subsidiary of well-known NPE Fortress Investment Group) as part of Unified's ongoing efforts in its SEP Video Codec Zone. The '651 patent, directed to a method for deblocking reconstructed video frames, has been asserted in district court litigation against Netflix and Hulu. Unified is represented by Haynes and Boone in this proceeding.

Visit Unified’s Portal for more information about its Video Codec landscape (OPAL) and standard submission repository (OPEN). To read the institution decision and review the case record, view IPR2019-01379 on Unified’s Portal.

Patent Quality Initiative Statistics - Dispelling PTAB Myths

The interplay between issued and litigated patents and the Patent Trial and Appeal Board (PTAB) has been much discussed, often with dubious claims supporting hyperbolic rhetoric.  The truth, however, is usually less dramatic than the lie. The following supported findings should dispel some of the more ridiculous rhetoric being bandied about. 

PTAB challenges have been made against 0.2% of active US patents

Some have argued that many US patents are being challenged.  The data shows otherwise. In fact, only 0.2% of all active US patents have been challenged in front of the PTAB. That does not mean that 99.8% of unchallenged patents are valid, but it does reflect the high cost of petitioning the PTAB and the relative rarity of challenges.  See Unified Patents Portal Analytics PTAB and Litigation, available at https://portal.unifiedpatents.com/patents/analytics/ptab-and-litigation.

Only 22% of litigated patents have been challenged at the PTAB 

Another claim is that the majority of litigated patents are challenged before the Board.  Looking at just those patents that have been asserted in litigation since the inception of the PTAB in 2012, it turns out only 22% of them have been subject to challenge—and far fewer were instituted, with still fewer making it to a final written decision.  See Unified Patents Portal Analytics PTAB and Litigation, available at https://portal.unifiedpatents.com/patents/analytics/ptab-and-litigation.

The vast majority of challenged patents are in the software/high technology industry

Of those patents that have been challenged at the PTAB and asserted in litigation, 63.5% of them were in the high-technology industry, 16.2% were in the medical industry, and 20.3% were in all other industries combined.  See Unified Patents Portal Analytics PTAB and Litigation, available at https://portal.unifiedpatents.com/patents/analytics/ptab-and-litigation.

Conversely, 81% of challenged patents have been litigated at least once

Conversely, the vast majority (81.3%) of patents that have been challenged at the PTAB have been asserted in litigation.  See Unified Patents Portal Analytics PTAB and Litigation, available at https://portal.unifiedpatents.com/patents/analytics/ptab-and-litigation.

Almost two-thirds of PTAB challenges are brought by US-based companies

United States-based companies are the biggest users of—and have benefited the most from—the PTAB.  Of the petitions for review by the PTAB filed from 2012 to 2019, 62.7% of them have been filed by petitioners based in the United States.  See “New study suggests that US companies have received the greatest benefit from post-AIA proceedings,” Unified Patents, Fig. 1 (Dec. 11, 2019) available at https://www.unifiedpatents.com/insights/2019/12/11/new-study-suggests-that-us-companies-have-received-the-greatest-benefit-from-post-aia-proceedings?rq=foreign.

The vast majority of litigations in the US continue to be initiated by NPEs

The chart below shows the number of new patent litigations filed in district court for every year from 2010 through 2019, broken down by the type of plaintiff.  The shades of blue represent non-practicing entity plaintiffs, while the lighter shades of gray represent operating company, government, university, and non-profit plaintiffs.  See Unified Patents Portal 2019 PTAB Annual Report, available at https://portal.unifiedpatents.com/litigation/annual-report.

Three-fourths of all appealed PTAB decisions are affirmed in full by the Fed Circuit

As of March 15, 2019, the Federal Circuit has reached a decision on the appeals of 479 IPRs and CBMs.  In those decisions, the Federal Circuit affirmed the PTAB’s decision 74.09% of the time, affirmed the decision in part 9.31% of the time, and reversed or vacated the entirety of the PTAB’s decision 13.36% of the time.  See “Federal Circuit PTAB Appeal Statistics Through March 15, 2019,” Finnegan AIA Blog (April 18, 2019), available at https://www.finnegan.com/en/insights/blogs/america-invents-act/Federal-Circuit-PTAB-Appeal-Statistics-Through-March-15-2019.html.

(For a more detailed analysis of adjusted affirmance rates at the Federal Circuit (which accords with these raw numbers), see https://jolt.law.harvard.edu/assets/articlePDFs/v32/32HarvJLTech575.pdf.) 

STPI's review of Unified's Portal & PATROLL

The Science and Technology Policy Research and Information Center (STPI) of the National Experimental Research Institute in Taiwan has created a report detailing the use of Unified's Portal as a free patent litigation search tool. The report provides a review of our Portal tools and capabilities, along with a quick "how-to" on searching for PTAB and litigation data. It also covers a description of our prior art crowdsourcing tool, PATROLL.  The overall report concludes with a positive review of any user having the ability to "make good use of high-quality free tools to search the U.S. patent litigation database" with Unified's Portal.

STPI's site was established to provide the latest industry trends and professional perspectives of various service providers based on "market + strategy + patent" knowledge and innovation. For more information on STPI's services and reports, please visit their website at https://iknow.stpi.narl.org.tw.

Prior art found for Blueprint IP

Unified is pleased to announce the PATROLL crowdsourcing contest winner, Rakon Nahar, who received a cash prize of $1,000 for his prior art submission for U.S. Patent 8,089,980, owned by Blueprint IP Solutions, LLC, a subsidiary of well-known NPE, IP Edge, LLC. The ‘980 patent was acquired as part of a larger portfolio originating with Siemens, was used in an assertion campaign that started in March 2019 over a network redundancy patent, and has been asserted in district court litigation against various companies.

To help the industry fight bad patents, we have published the winning prior art below.

We would also like to thank the dozens of other high-quality submissions that were made on this patent. The ongoing contests are open to anyone, and include tens of thousands of dollars in rewards available for helping the industry to challenge NPE patents of questionable validity by finding and submitting prior art in the contests. Visit PATROLL today to learn more about how to participate.

WINNING SUBMISSION

• US20040153700 A1

US 8,089,980 The '980 patent ("Löbig"), which was filed on August 26, 2004 and claims a December12, 2003 priority date, discloses a method of providing a redundant (i.e., a clone) switchingsystem in a powered-up but idle mode ("hot-standby" or "warm-standby" state) that periodicallysends an IP lease request to a monitoring unit through a packet-based interface of the switchingsystem in the hot-standby state.

$7,000 Cash Prize for Prior Art on DivX Patent

On January 24, 2020, Unified added a new PATROLL contest with a $7,000 cash prize for prior art submissions for US 10,212,486. The '486 patent is owned by DivX, LLC, a subsidiary of well-known NPE, Fortress Investment Group, and generally relates to playing back encrypted video involving cryptographic information. This patent is being asserted against Netflix and Hulu in district court.

The contest will expire on February 29, 2020. Please visit PATROLL for more information or to submit an entry for this contest.