Through almost four years and nearly fifty patentability challenges, Unified Patents (UPI) has never lost a real party-in-interest (RPI) decision before the PTAB. Here are some of those decisions.
Unified's members were not found to be RPIs, where there was no evidence of funding or control of a particular IPR. Clouding IP Institution Decision. Mar. 21, 2014. Invalidated by Final Written Decision April 26, 2015.
Members were not found to be RPIs, where there was no evidence of funding or control relating to any specific IPR; the panel indicated that would be so even if Unified were only to file IPRs against member-litigated patents. The panel distinguished the adverse institution decisions in RPX . v. VirnetX at length. Dragon IP Institution Decision, Feb 12, 2015. Invalidated by Final Written Decision Feb 5, 2016.
An IPR filing and timing that benefited members did not make those members RPIs. Hall Data Sync Institution Decision, Sept 17, 2015. Settled Dec 21,2015.
There would have to be specific evidence that members “picked the patents to be challenged and provided funding for the particular proceedings” to establish an RPI question. The panel distinguished In re Guan, the "trollbusters" inter partes reexam decision cited in the PTAB Trial Practice Guide. iMTX Strategic Institution Decision, Oct. 15, 2015.
Declined to investigate RPI, where Unified’s sworn statements were similar to those in the past and no new issues were raised. UPI v. TransVideo Elects., Ltd. IPR2015-01519, Paper 8 (Jan. 15, 2016).
That there must be actual evidence a member exerted control over a particular IPR, not “mere speculation,” to raise a question as to real-parties-in-interest. Qurio Institution Decision, Apr. 13, 2016.
Arguments not raising specific evidence of communications or direct funding to challenge a specific patent failed; a “mere possibility” of communications related to the selection of patents did not suffice. Nonend Institution Decision, May 12, 2016.
No evidence any other entity controlled or financed this IPR, where members paid subscription fees and had membership agreements. Evidence showed Unified “makes all decisions” and “alone bears all costs” regarding challenges, "without input from its members." American Vehicular Sciences (AVS) Institution Decision, June 27, 2016.
Other articles about the decision: Law360