“Rather than praising PQA for filing a compelling merit petition, the Director denounces PQA for a confidential counteroffer made during settlement negotiations with VLSI.” – Mandams of PQA petition for warrant
Following a December 2022 precedent ruling by U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal, in which Patent Quality Assurance (PQA) abused the inter partes review (IPR) process in a lawsuit against VLSI technology, PQA announced that Mandoms filed a petition seeking relief from A matter of the United States Court of Appeals for the Federal Circuit (CAFC).
Vidal ruled in December that PQA abused the IPR process by filing an IPR and threatening VLSI to participate in another IPR in order to receive payments from technology companies.
Vidal also found that PQA misrepresented its “exclusive involvement” with a witness involved in another IPR petition against VLSI from OpenSky, Dr. Adit Singh. In her decision to exclude her PQA from IPR, she wrote:
“Off the Rails”
In the Mandams warrant petition, the PQA alleges that Vidal “unlawfully sanctioned PQA with dismissal” and the board issued a final written decision (FWD) with a deadline of January 27, 2023. PQA instructs the CAFC to revoke the sanctions, suspension orders imposed by Vidal, and direct the board to “comply with statutory and regulatory requirements.” Alternatively, it asks the court to vacate the sanctions decision and the order underlying it and direct the board to issue her FWD “because further agency consideration is futile.”
The petition calls the IPR proceedings in question “insane.” It characterized Vidal’s actions as “super-malicious” and stated that “as a fired party and because PQA was not sued by VLSI, PQA may not be able to appeal”, so the Mandams bailout was PQA’s sole remedy. It is described as an option.
Vidal announced in June 2022 that she would spontaneously Confirm agency decisions in both OpenSky Industries, LLC vs. VLSI Technology LLCIPR2021-01064 and Patent Quality Assurance, LLC vs. VLSI Technology LLC, IPR2021-01229 because they “[raise] New issues of law and policy, and issues of particular importance to the Office and the patent community. Then she requested an Amicus briefing on her July case.
PQA and OpenSky were incorporated after Intel was found in a district court to have infringed VLSI’s patents and had no identifiable business activity beyond challenging VLSI’s patent claims. The petitions of the two entities were also nearly identical between the parties A previously filed review (IPR) petition by Intel that was denied by the USPTO. Intel is now participating as a party to both directors and his review proceedings.
In December, Vidal ruled that OpenSky’s IPR, with Intel acting as the lead petitioner after OpenSky was licensed in October, was “compelling and meritorious.” However, Vidal also dismissed OpenSky outright in December, “to prevent OpenSky from profiting from the abuse of his IPR process.”
“Shenanigans”
PQA’s Mandamus petition attempted to distinguish between PQA and OpenSky, explaining that while OpenSky apparently engaged in many sanctionable activities, “PQA did nothing of those things.” I’m here. Instead, PQA took all standard steps required of IPR petitioners without payment of any kind from VLSI or Intel, the petition says.
Instead of engaging in sanctionable conduct, PQA claims it was actually extorted by VLSI.
“Shortly before the Board enacted PQA’s ‘373 IPR, VLSI requested settlement talks, entered into an NDA with PQA, agreed to keep settlement talks confidential, and then made those talks public. VLSI violated the NDA by publicly disclosing on Document 6 and alleging that PQA attempted extortion VLSI….Rather than commending PQA for filing a persuasive merit petition, the Director We condemn PQA for the confidential counter-offers made during settlement negotiations with VLSI, but again, these negotiations were at VLSI’s request and the Board encouraged the settlement, as did the Court. Nevertheless, PQA has responded by publicly stipulating that it will not accept funding from VLSI.” (citation omitted)
The petition called VLSI’s actions “shenanigans” and said the PQA is seeking a power of attorney because it “has endured illegal order after illegal order.” For example, PQA alleges that Vidal failed to comply with regulations because he did not give PQA the opportunity to explain why sanctions should not have been imposed before imposing them. Vidal essentially admitted this, but the PQA did not withdraw the sanctions.“Instead, instead of providing lip service to the rules, the Commissioner told the PQA (the still-fired party), page 60. 10-page document may be submitted within seven days in response to the sanctions order.
Ultimately, the petition raises four issues for the CAFC to consider:
“1. Did the Director act unlawfully and/or deprive the complainant of due process rights by making inferences against the PQA and dismissing the PQA as a sanction? (37 CFR § § 42.11(d)(1) & (3)) Require PQA to be notified and given an opportunity to respond before sanctions are imposed?
2. Did the Director act unlawfully and/or disown PQA due process rights?
3. Did the Director act unlawfully or violate PQA’s due process rights by sanctioning PQA for “abuse of process” based on ex post criteria developed by the Director? Abuse of ‘?
4. Is the Director’s review illegal because (1) it is “taken”?[s] (2) “control” of IPR proceedings in violation of 35 USC §§ 6(c) and 316(c) (requiring ruling by a three-member panel); and/or and/or Cooley v. United States, 324 F.3d 1297, 1305 (Fed. Cir. 2003) (retrial must be conducted “within a short and reasonable period of time”)?”
