“We are disappointed and disagree with the Federal Circuit’s decision in light of previous rulings on these same patents.” – Kendall Larsen, VirnetX
The U.S. Court of Appeals for the Federal Circuit on Thursday ruled that VirnetX’s patent claims were unpatentable in inter partes review (IPR) challenges filed by Apple, Inc. and Mangrove Partners, two Patent Trial and Appeal Boards (PTABs) supported the decision of
This controversy is related to VirnetX’s US Patent Nos. 6,502,135 and 7,490,151, which are directed to “Secure Mechanisms for Communicating over the Internet.” In his PTAB, Mangrove Partners disputed some of the claims in the ‘135 patent, and in his 1996 article authored by Kiuchi and Kaihara, “C-HTTP – The Development of a Secure, Closed HTTP-based Network on the The Internet” claimed to have been expected. Another argument was clear based on his Kiuchi considering Mockapetris, Request for Comment 1034, “Domain Names – Concepts and Facilities.”
Mangrove also filed an IPR of the ‘151 patent, and the challenged claims are anticipated by Kiuchi, and (a) Kiuchi in view of RFC 1034, (b) Kiuchi in view of the 1996 reference by Rescorla and Schiffman. , “The Secure Hypertext Transfer Protocol” (“Rescorla”), and (c) Kiuchi from further perspectives of RFC 1034 and Rescorla. Apple joined both lawsuits and Black Swamp IP joined the ‘151 IPR.
On appeal, the CAFC found substantial upholding of the PTAB’s finding that Kiuchi’s reference “because it teaches a direct-communications VPN, is within the scope of the claims of VirnetX’s ‘135 patent and is not an indirect-communications VPN.” I found that there is evidence During reexamination of the ‘135 patent, he put his Kiuchi within a disclaimer made by VirnetX and used “non-direct virtual private network and virtual private network communication links” to distinguish separate prior art references. Disclaimer.
With respect to the ‘151 patent, VirnetX argued on appeal that “Kiuchi did not teach a DNS proxy module that could perform the steps of determining, transferring, and drafting the challenged claims,” but the Federal Circuit ruled that the PTAB’s adopted the view. It is a domain name server (‘DNS’) module and thus anticipates claims 13 and 14 of the ‘151 patent. The Federal Circuit previously reversed and remanded the Board’s decision that Kiuchi’s C-HTTP nameserver alone taught the determination, forwarding, and restriction making of claim 13, but on this appeal, the PTAB has substantial evidence to support its adoption of petitioner’s allegations. Kiuchi, “Client-side proxies working with C-HTTP name servers act as required DNS proxy modules.”
VirnetX also challenged the PTAB’s decision to join Black Swamp against the IPR of the ‘151 patent, and asked the CAFC to reverse and remand it. Facebook, Inc. v. Windy City Innovations, LLC. The court said VirnetX waived the issue because it failed to raise it in a previous appeal of the PTAB’s decision on the ‘151 patent.
The decision jeopardizes the $502 million jury prize for VirnetX in 2020. Kendall Larsen, his CEO and President of VirnetX, said in his statement: We are evaluating all available options, including the possibility of seeking reconsideration or discretionary review. “
The CAFC today issued a separate opinion dismissing VirnetX’s appeal to the United States District Court for the Eastern District of Texas as frivolous in light of Thursday’s ruling.
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