$2,000 for Xperi prior art

On November 1, 2021, Unified Patents added a new PATROLL contest, with a $2,000 cash prize, seeking prior art on at least claim 1 of U.S. Patent 9,398,209. The patent is owned by Xperi Holding Corporation, an NPE. The '209 patent relates to a method of tracking faces in an image stream. The method includes receiving images from an image stream including faces, calculating corresponding integral images, and applying different subsets of face detection rectangles to the integral images to provide sets of candidate regions.

The contest will expire on January 17, 2022. Please visit PATROLL for more information and to submit an entry for this contest.

InterDigital EPO patent challenged

On October 26, 2021, Unified filed an opposition proceeding against EP 1869893 B1, currently owned by InterDigital. The EP ’893 patent is part of a family purportedly essential to HEVC and part of the Access Advance patent pool. This filing is a part of Unified’s ongoing efforts in its SEP Video Codec Zone.

Unified is represented by Andrew McGettrick at HGF Law, and by in-house counsel, Ashraf Fawzy and Jessica L.A. Marks.

With Uncertainty Brings Change: A Q3 Look at Fintiv Denials

The recent introduction of the Restoring the America Invents Act by Senate IP Subcommittee Chair Senator Patrick Leahy and Senator John Cornyn aims, in part, to remove the uncertainty that the precedential Fintiv orders have caused. Looking at the actual number of denials and frequency of the Board’s use of their discretionary line of cases, though, the consistent takeaway is that Fintiv continues to be used in unpredictable, ever-changing ways to deny otherwise-meritorious, timely challenges.

Despite the slight dip in overall filings (and decisions from last year’s also-down filings) so far in 2021, procedural denials are now used nearly 16% of the time, as compared to just 5% in 2016, before Fintiv and related cases were designated precedential. That is a 220% increase. Even with the uncertainty of Arthex over the first half of the year and the overall dip in filing decisions, the USPTO was still not shy about using procedural denials.

Section 314(a) is still being used 73% of the time for procedural denials.

Interestingly, the use of §§ 314(a) and 325(d) has jumped 6% versus last year. This year has seen these two denials 94.5% of the time in terms of overall procedural denials.

Section 314(a) denials are now 12.4% of denials, a very slight increase from last quarter.

Meanwhile, § 325(d) denials are being used 5.7% of the time, slight increase from last quarter.

The NHK Spring/Fintiv framework continues to be the dominant framework for § 314(a) denials with 77 already, 8 shy of the total last used last year.

Fintiv denials continue to be predominantly used in cases with parallel proceedings in the Eastern District of Texas.

That nearly 63% of all Fintiv-cited denials lead to a settlement begs the question of whether the PTAB might have been more effective at resolving unnecessary litigations; it would appear that, by and large, courts are being used to force settlements rather than address the merits of a patent claim.

Even despite the strategy of a given plaintiff, cases in Fintiv-cited denials are averaging almost two years (700 days) for a case to be terminated, no matter the outcome.

Relevantly, comparing the caseload of the PTAB judges versus the Western District of Texas and Judge Albright’s court docket—inarguably the single biggest patent docket for a U.S. district court judge—it becomes apparent that PTAB dockets are far less crowded and the Board has the necessary resources to hear cases efficiently while giving each cases its due attention; for instance, the highest-docketed PTAB judges have around 100-200 cases on their docket currently (with many having just a handful of PTAB cases balanced with ex parte appeals), whereas Albright has had roughly 700 patent and 1,250 total civil cases on his docket—and growing. See Ryan Davis, Albright Says He’ll Very Rarely Put Cases on Hold for PTAB, Law360, May 11, 2021 (6:50 PM EDT) https://www.law360.com/articles/1381597/albright-says-he-ll-very-rarely-put-cases-on-hold-for-ptab (Judge Albright, noting as of may that he has his civil docket has 1,250 cases, roughly 60% of which were patent cases).

This accounts for both having a certain rate of settlement and new filings, and shows a snapshot in time of the total docket of active patent cases. This suggests that even the most favorable comparisons of dockets indicate the PTAB three-APJ panels can devote much more time and many more resources to each individual ground—an observation only magnified by the myriad other issues attendant on a Federal District court judge’s docket in any particular case.

Dominion Harbor's entity Liberty Peak Ventures patent challenged

On October 21, 2021, Unified filed a petition for inter partes review (IPR) against U.S. Patent 8,066,181, owned and asserted by Liberty Peak Ventures, LLC, a Dominion Harbor entity. The '181 patent relates to generating an authentication tag for use in contactless transactions and has been asserted against Citigroup.

View district court litigations by Liberty Peak Ventures. To read the petition and view the case record, see Unified’s Portal. Unified is represented by in-house counsel Michelle Aspen and Roshan Mansinghani.

Joao entity Caselas' patent likely invalid

On October 19, 2021, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims of U.S. Patent 9,715,691, which is being asserted by Caselas, LLC, a Raymond Anthony Joao entity. The '691 patent is generally directed to providing transaction history information including charge-back information.

Caselas is asserting the '691 patent against 33 banks and merchant services companies, including First Citizens Bank, UBS Bank, First National Bank of Omaha, TruWest Credit Union, and Electronic Merchant Systems.

View district court litigations by Caselas. To read the petition and view the case record, see Unified’s Portal. Unified is represented by Larissa Bifano and Zach Conrad of DLA Piper and by in-house counsel, Ashraf Fawzy and Jordan Rossen, in this proceeding.