On June 5, 2014, the PTAB denied seven IPR petitions filed by RPX Corp. against four VirnetX patents. The decision involved:
IPR2014-00171 (Patent 6,502,135); IPR2014-00172(Patent 6,502,135); IPR2014-00173 (Patent 7,490,151); IPR2014-00174 (Patent 7,921,211); IPR2014-00175 (Patent 7,921,211); IPR2014-00176 (Patent 7,418,504); IPR2014-00177 (Patent 7,418,504)
The four patents concern a patent litigation brought by VirnetX against Apple. The litigation resulted in a $368M jury verdict in favor of VirnetX. Apple was also assessed a 0.98% royalty rate for ongoing iPad and iPhone sales. A more thorough recap of the patent litigation and PTO proceedings involving Apple, VirnetX, and RPX is contained in an article by Joe Mullin at Ars Technica last week.
From a PTAB perspective, this is pretty interesting stuff. In a different IPR against a Clouding IP patent, the panel instituted a similarly situated IPR. The IPR against a Clouding IP patent was instituted even though Google was a possible real-party-in-interest, yet a time-barred entity. To square up the rationale between the VirnetX and Clouding IPRs, it may be useful to read the RPX memorandum and the VirnetX memorandum from the VirnetX IPRs.
We'll write a follow-up post explaining these rationales later in the week. Until then, you can read other thoughts ranging from banter after Mark Cuban's tweet of the Ars Technica article on Hacker News, a short blog post by Kenyon & Kenyon, and another discussion group at Investor Village.
What's your reaction? Setting aside the time bar issue, shouldn't the patentability of these VirnetX patent claims be addressed by the PTO at some point? The Director of the PTO has this type of authority, but there hasn't been a PTO Director for nearly 500 days.