Patent Filings Roundup: Slow Board Week Highlights Reduced Use of PTAB; Acacia and IV Sue, Settle, and are Challenged in Ongoing Campaigns; Advisory ANPRM on Fintiv Changes Drops

It was another low patent-filing week at the Patent Trial and Appeal Board (PTAB), with just 12 new petitions (about half of last year’s average); district court filings were average with 47 new filings. Acacia subsidiary Atlas Global received more petitions on patents that are part of its broad assertion campaign; some Centripetal patents were instituted by a defendant in that going campaign; Intellectual Ventures appears to have settled the latest round of automotive litigation before Judge Albright, ending that case; and IP Edge continues to not file new cases and settle old ones, in the wake of the end of the year discovery battles. Zillow was instituted on patents IBM had asserted or threatened; and the Vidal administration is the latest recipient of yet another Gil Hyatt suit.

Generic Dr. Reddy’s Instituted Against Abbvie Antibody Patent: In a display of the power of the PTAB in providing a check on pharmaceutical patent validity, a petition was instituted on the merits on U.S. Patent 11,110,087, directed to a “Combination Therapy of a Type Ii Anti-cd20 Antibody with a Selective Bcl-2 Inhibitor.”  It appears to be just one of a handful of Orange Book-listed patents covering Venclexta, a leukemia treatment.

Office Seeks Comments on Grab-Bag of Wide-Ranging Discretionary Denial Proposals:  The big news this past week was obviously the release of the USPTO’s second request for comments on potential changes to discretionary denials. The 60-page document is labelled an “advanced” notice of proposed rulemaking but contains no actual rules. Policy wonks will tell you this is really a request for comments—in theory soliciting feedback from the public in an attempt to bolster an actual Notice of Proposed Rulemaking (NPRM). An NPRM is the necessary predecessor to compliant notice-and-comment rulemaking, which is the only real correct way to regulate per admin law principles and the Administrative Procedure Act (APA). It contains a grab-bag of proposals, from requiring litigation funders and corporations to disclose investment, owners and subsidiaries, to a proposal apparently targeting my employer. It includes a small entity carveout, a one-and-done proposal, and a whole host of other wildly expansive add-ons to the already-fraught Fintiv analysis, all on the back of the word “may” in the statute. Legislative in nature, many of these proposals have already been the subject of failed legislation, and some were expressly considered and rejected by Congress. If the widely controversial Fintiv was trying to fit an elephant through a keyhole, this is the agency trying to fit 15 elephants and a grey whale through. One thing is for certain, wherever you stand—this will be a fraught time in the patent agency policy debate.

IP Edge: Filings from IP Edge subsidiaries have dropped to zero through the first four months of this year, as they ostensibly regroup in the face of the Delaware inquiry into their ownership and funding structure. In the meantime, they continue to settle their pending cases against retailers, small businesses, and others.