Following the unsealing of the Federal Circuit’s decision in Applications in Internet Time v. RPX Corporation — which revealed that the court had thrown out decisions from the Patent Trial and Appeal Board and ordered the board to reevaluate the role of RPX Corporation in the matter — the topic of real parties-in-interest is back in the spotlight.
Not that it’s been out of the news for long. St. Louis patent litigator Doug Robinson spoke to Law360 in June about real parties-in-interest and their potential role in the Wi-Fi One v. Broadcom case.
The Applications in Internet Time v. RPX Corporation decision has raised new concerns over RPX’s ability to circumvent time-bars when bringing Inter Partes Review challenges against patent owners.
According to its website, RPX offers a range of solutions for managing patents, including litigation insurance. They have more than 320 “members” and have dismissed more than 1,500 litigations. They claim that they “remove patents – pre-litigation and out of active litigation – before they can become a costly problem for our clients.”
With 320 members, though, who counts as a party-in-interest and who does not? Robinson asserts that “the Federal Circuit’s decision feels specifically written for this unique business model, although it also applies more broadly to any situations where a real party-in-interest issue is raised.”
Given the precarious fate of patents in IPRs — and the patent owner’s ability to wipe out the whole proceeding if an unnamed real party-in-interest can be identified — this will likely become a more common weapon in future IPRs. “I think we’ll see more detailed and more creative real party-in-interest challenges going forward,” Robinson said.
Weapons are not cheap, though. These efforts may drive up the cost of discovery, for example, and conducting discovery for all 320 RPX members will be costly.
While some may take the stance that the court’s opinion suggests that all of RPX’s members can be named, others are not convinced. “I don’t think it would be within the spirit of the Federal Circuit’s analysis to say that everybody who is a member is a real party-in-interest,” Robinson said. “But that raises interesting practical considerations.”
One such consideration: if a parent company brings an IPR, will all of its subsidiary companies need to be named as parties-in-interest?
For now, challengers at the PTAB can expect fewer shortcuts to axing competitor patents.