Salesforce’s Abusive Post Grant Tactics Demonstrate USPTO Dysfunction

The question of who is the actual stakeholder between the parties Examinations (IPRs) submitted to the Patent Trial and Appeal Board (PTAB) are a particularly thorny issue. When IPR was introduced, patent owners were convinced that there was a meaningful estoppel clause. This ensures that someone who loses the IPR cannot challenge the same patent in subsequent proceedings. There was also the statute of limitations, another troubling issue that prevented a challenger from filing her IPR more than a year after being sued.

In short, the actual stakeholder law and the statute of limitations that apply to all other legal situations are interpreted very differently by the PTAB. For example, if you are banned from a challenge due to the statute of limitations and someone else raises the challenge, suddenly you are allowed to participate in the challenge despite being banned. But wait. We have others, too. If the first party that was not banned has settled and left the case, and the banned party is the only remaining challenger, the case must continue. Legal absurdity.

When it comes to real stakeholders, if you can’t do it because of time limits or because you tried and lost, you can join a collective like RPX and they can do it. The PTAB-run fiction is that even if the banned party becomes the beneficiary of the outcome, the challenge is completely independent of the banned challenger being a paying member.

If PTAB says no, try CRU

However, there are particularly questionable acts of harassment going on. If a challenger loses her IPR, they simply submit the same, or nearly the same, challenge. one-sided Retest requests at the Central Retest Unit (CRU). Logically, the criteria for initiating an IPR (i.e., “the petition is reasonably likely to be prioritized”) and the criteria for initiating an IPR. one-sided Reexamination (i.e., whether there are “substantial new issues of patentability”) is different. However, it is not well understood how the substantial new question of patentability differs from the reasonable likelihood that the petition will succeed.

So why would the United States Patent and Trademark Office (USPTO) allow the CRU to initiate a reexamination when the PTAB refused to initiate an IPR? To prevent the CRU from initiating a reexamination if you refuse to initiate.

All of these issues Application in Internet Time, LLC v. RPX Corporation, 897 F.3d 1336 (Fed.Cir.2018). In that case, U.S. Court of Appeals for the Federal Circuit, Judge Kathleen O’Malley, said she explained exactly what the PTAB should consider when determining whether Salesforce is a genuine interested party, and that the law’s proper We remanded the case to her PTAB for consideration. Not a Strowman ruse secretly carried out by RPX. And, as has been widely suspected over the years, RPX has been secretly accused by her PTAB of having its members legally prohibited from attacking patents, specifically in this case Salesforce. was found to be acting as an agent for

For example, when RPX member Salesforce was barred by statute of limitations from filing an IPR petition against a patent asserted by Applications in Internet Time, RPX filed a petition in its own name for the benefit of Salesforce. I submitted a petition. RPX is Salesforce actually A real party of interest and there was a statute of limitations. Once the scheme was discovered, the PTAB issued the strongest sanction of ending her ongoing IPR.

This seemed to be the end of this particular scheme by RPX and Salesforce. Unfortunately, it wasn’t. Salesforce moved the attack to his CRU and submitted the request there. one-sided Reexamination for the same terminated IPR grounds. The CRU apparently was unaware that the PTAB referred to these grounds as “abuse” of the post-grant system and immediately ordered a reexamination.

Half a year ago, the patent owner Petition to abolish summary reexaminationThe petition remains pending, inexplicably putting the patent owner in a bind. This is an easy decision.

wasteful allocation of resources

In re Vivint At the very least, CRU should have been aware of the close relationship between RPX and Salesforce to prevent reexamination from being initiated if the PTAB rejected the nearly identical IPR as abuse.of VivintThe Federal Circuit held, “When applying § 325(d), the Patent Office cannot deny initiating IPR based on abusive filing practices, and can file an abusive, nearly identical request for reexamination.” I cannot allow it.” In re Vivint, Inc.14 F.4th 1342, 1354 (Fed. Cir. 2021). Vivint It was harassment by the challenger, with multiple challenges being rejected and kept submitting in hopes of fixing those flaws. When conclusively rejected by the PTAB, they went to his CRU.This harassment gamemanship by challenger Vivint It’s suspiciously reminiscent of the secret proxy war fought by RPX on behalf of Salesforce, which failed to challenge the patent itself.

The USPTO’s right hand should know what the left hand is doing, and if the PTAB refuses to initiate an IPR for any reason, the CRU may, for the same or similar reasons, or re-examine. A reexamination should not be initiated for reasons that there is or should be. was raised.

Simply put, it is illegal to allow a CRU to initiate a reexamination when the PTAB refuses to initiate an IPR. It’s also a wasteful misallocation of resources, because in the end he will be challenged by the CRU exactly the same he will be the PTAB. The PTAB makes the final decision, but because they have already spoken out, everything the CRU does is a waste of time, a misallocation of government resources, and a definition of harassment of patent owners. becomes what it is.

If the PTAB terminates an IPR based on “abuse” of the post-grant system and the same reason is presented as a reason for reexamination, not only will you be warned before the CRU orders reexamination, but it will also prevent reexamination. You need a mechanism for that. order a re-inspection. CRUs should not be used as parity for fraudulent patent challenges rejected by the PTAB.

Next Saga

In the RPX/Salesforce situation, the patent owner warned the Patent Office that the granted request for reexamination included reasons for the previous termination of the PTAB due to unfair filing practices. Hopefully the USPTO will do the right thing and stop this harassment once and for all. This is because only the statute of limitations and the Substantial Stakeholder Act really matter, and the disputants are third-party sprinkles.

The patent owner is represented by Carmichael IP, PLLC.

To learn more about this and other PTAB-related issues, join IPWatchdog’s PTAB in Ashburn, Virginia from January 30th to February 31st. Masters™ 2023.

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Author: Devon
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