As the second week in the life of Inter Partes Review draws to a close, it’s interesting to consider the entities that have initially made use of the new Patent Office trial and the subject matter of the patents that are being challenged.
The technology centers with the most activity are 2800 (Semiconductors, Electrical and Optical Systems, and Components) – 6 filings; 2100 (Computer Architecture, Software, and Information Security) – 3 filings; and 1600 (Biotechnology and Organic Chemistry) – 3 filings. So, semiconductors and computer/software are an early focus – not surprising given these are popular spaces for non-practicing entities (NPEs).
The leading IPR petition filers to date are Intellectual Ventures Management, LLC (4 filings all against patents owned by Xilinx), Nissan North America, Inc. (2 filings), Synopsys, Inc. (2 filings), and Illumina, Inc. (2 filings). As one would expect, the filings made by all petitioners are comprehensive and detailed. Thus, it is fair to conclude that these early IPR filers all targeted the new IPR proceeding for one reason or another. This is in stark contrast to the days leading up to the changeover from Inter Partes Reexamination to Inter Partes Review, when hundreds of reexaminations were filed; presumably those entities saw value in the older system.
It is interesting that the entity that filed the most IPR petitions is Intellectual Ventures Management, LLC, a company known for buying patents to seek licensing revenue and, on occasion, brings lawsuits for patent infringement. IV typically finds itself on the plaintiff side of patent litigation, so it may seem odd that IV is the leading IPR filer out of the gates. Digging deeper into the four IPR petitions IV filed, however, tells a more interesting tale.
Part of IV’s business model is to create funds that purchase patent assets and then IV seeks investors for that fund. Many technology giants are counted as investors in IV, including Apple, Cisco, Google, and many others. Among the other investors is Xilinx, a manufacturer of programmable memory chips. According to allegations made by Xilinx in a complaint filed against IV in 2011, Xilinx became an investor in two or more of IV’s funds and then, after IV acquired additional patents in those funds, IV asked Xilinx to increase its investment to cover licenses to those new patents. In essence, IV used Xilinx’s (and other investors’) money to purchase more patents and then sought to leverage additional money from Xilinx for those patents.
So, as that battle rages on in the Northern District of California, IV has seemingly opened a new front in the larger war – seeking to take down four of Xilinx’s patents. While it is difficult to gauge IV’s intent from afar, it is interesting to remember that if parties to an IPR achieve a settlement before the Patent Trial and Appeal Board (PTAB) reaches a final written decision, the IPR is ceased. If these patents are important to Xilinx, it may increase the pressure on Xilinx to settle its war with IV. We will keep a watch on further developments.