OpenSky ‘Abuse’ Sanctions Add New Weapons in Patent Challenges

Director Kathi Vidal recently issued a decision finding that OpenSky Industries LLC abused the inter partes review (IPR) process in a challenge against a VLSI Technology LLC patent. The decision was the first time a PTO director levied sanctions in a patent review. Practitioners belive this decision could open the door to more scrutiny of petitioners’ reasons for bringing challenges and the ability of a flawed IPR challenge to continue under a new petitioner. Bloomberg Law interviewed Finnegan partner Tim McAnulty for his thoughts. 

Tim noted that while Vidal pointed to the flagrant facts specific to this case—OpenSky seemingly formed in the wake of the verdict to capitalize on it, copied invalidity arguments from an earlier Intel petition, and sought money from both parties—her analysis could lay out a template that a PTAB panel or patent owner turns to in the future to allege abuse of process.

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