Intel is leading an effort to force the US Patent and Trademark Office to axe a new rule said to favor litigious patent trolls.
The USPTO manages Inter Partes Review (IPR) panels that can be asked to assess granted patents and decide whether to throw them out on the grounds they should never have been approved in the first place. The review boards were introduced with the 2011 America Innovates Act, and their decisions can bring legal fights to fairly swift conclusions.
For example, if a patent troll was suing you for infringement, you could ask a panel – typically made up of a few patent trial and appeals judges – to review the troll's patents in hope of having them invalidated. If that were to happen, the troll's case against you would fall apart. This discourages trolls – holding companies that hoard intellectual property – from filing infringement claims to extract fees from victims.
However, Chipzilla, together with fellow tech heavies Cisco, Apple, and Google, are this week suing [PDF] USPTO Director Andrei Iancu in a San Jose federal district court to prevent him from enforcing a newly created rule limiting the use of IPR panels.
Under that rule, these IPR requests cannot be made just before or during a trial, with the reasoning that the panel system was designed to be an alternative to court battles over infringement and not something to happen alongside it. This clampdown has led to more IPR requests being denied, and more cases having to go to trial or settled out of court. And the tech goliaths, not liking this situation, want the restrictions scrapped.
"Over the past twelve months, the number of discretionary denials under the new rule, denying access to inter parties review without regard to a petition’s likelihood of success on the merits, has more than doubled," Benjamin Ostapuk, Intel veep and director of its intellectual property legal group, explained.
"Recently, the denial of access to the IPR process is becoming customary as the PTAB leaves suspect patent claims in force by declining to review them based on vague discretionary factors and asserting that those denials are not even subject to judicial review."
IBM, Microsoft and Linux Foundation link arms to fight patent trolls with 'multimillion' schemeREAD MORE
The USPTO told The Register it has no comment on the matter.
With fewer IPR challenges being accepted, Intel argued, the patent trolls are emboldened to once again lob dubious infringement claims at the processor designer and other big biz in hope of a quick settlement payout.
Ostapuk said the loss of access to the IPR process and the resurgence in infringement claims are not a coincidence.
"An almost immediate result of this behavior by the PTAB is patent litigation rising to levels not seen in nearly a decade," the Intel VP argued.
"Additionally, the number of those lawsuits being filed by patent licensing entities, meaning entities that do not manufacture products but purchase patents only to sue and tax successful operating companies like Intel, is exploding."
The four companies are now pushing to have the rule thrown out by the court in hopes that it will lead to more IPR claims being granted and fewer patent troll suits. ®