USPTO Director Scolds VLSI for Publicly Citing Anonymous Report on PQA-Intel Connection

U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal said in an Order filed yesterday in IPR2021-01229 between Patent Quality Assurance (PQA)/Intel and VLSI Technology that VLSI’s reference in its Rehearing Request to an “unsolicited, anonymous, and improper ex parte communication” about the relationship between PQA and Intel that Vidal had put under seal has put VLSI on thin ice and in danger of being sanctioned.

IPWatchdog Article

Though the Order is redacted, it ostensibly refers repeatedly to an IPWatchdog blog article published on February 15, 2023, in which reference is made to an anonymous document submitted to the House Oversight Committee that detailed a relationship between Intel and PQA. Though IPWatchdog could not verify any of the allegations made in that document and remains neutral on the matter, in that article, IPWatchdog Founder and CEO Gene Quinn explained that the USPTO has thus far been unresponsive to an independent December 2022 FOIA request from IPWatchdog relating to the PQA-Intel relationship.

However, a recent communication from the USPTO indicates those documents could finally be coming soon:

“I can confirm that our long awaited FOIA remains pending,” said Quinn. “I have been told that documents responsive to my request were located in December 2022, but for some reason needed to be sent to the Department of Commerce for their comment and consideration. The latest estimate in this long overdue request is that the USPTO hopes to have “an interim response” to the FOIA request by the end of this week.”

Quinn explained in the February 15 article that a ruling by Director Vidal dated February 9, 2023, made reference to two separate exhibits filed under seal for the eyes of parties and the Board only—Ex. 3029 and Ex. 3030— and relate to some documents “possessed by multiple members of the House Oversight Committee, multiple additional staffers on the Senate Judiciary Committee, and the Patents Ombuds Office of the USPTO.” Quinn added:

“For now, Director Vidal’s February 9 Order raises far more questions than it answers, particularly considering it has been nearly 10 weeks since the USPTO completed its search for documents responsive to our FOIA request but no documents have been provided. It feels like there is much more to learn about a relationship between PQA and Intel, and the reason for so many questions swirling in the open relates to secret filings at the PTAB, a whistleblower complaint that has not been made public, and a long overdue FOIA request.”

Vidal: You’re Safe for Now, But Don’t Do it Again

VLSI said in its response to Vidal’s February 23, 2023, Order to Show Cause as to why it should not be sanctioned for including information she had designated for Parties and Board only in its Rehearing Request that the information it included was already publicly available in the IPWatchdog blog article and—presumably—in a March 1, 2023, Breitbart article. Vidal disagreed, saying that VLSI’s statements and the statements made in the IPWatchdog article were not equivalent (VLSI’s exact statements are unknown as they are redacted) and that reliance on the Breitbart article was “misplaced” considering the article was published after the Rehearing Request was filed.

Despite Vidal’s disagreement with VLSI, she stopped short of imposing sanctions “because I agree that, for the most part, the allegations contained in the Rehearing Request were already asserted in a publicly available blog article,” she said. However, she “strongly caution[ed]” VLSI to refrain from citing to information contained in Exhibit 3030 containing the “improper” ex parte communication and said that “if it repeats similar conduct, I will issue another Order to Show Cause as to why VLSI should not be sanctioned and pay compensatory fees to PQA and/or Intel.”

Vidal granted Director Review of the IPR brought by PQA against VLSI in June of 2022 and the parties have been engaged in an ongoing and bitter battle since then.

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Author: willeecole