Salesforce’s Abusive Post Grant Tactics Demonstrate USPTO Dysfunction
The issue of who is the real party in interest in an inter partes review (IPR) filed at the Patent Trial and Appeal Board (PTAB) is a particularly thorny matter. When IPRs were introduced, patent owners were assured that there would be a meaningful estoppel provision, which would prevent those who lost IPRs from challenging the same patents in later proceedings. There was also a statute of limitations, another thorny matter, that would prevent challengers from filing an IPR more than one year after they were sued. The long and short of it is this—real party in interest law and statute of limitations law, which apply in every other legal setting, are interpreted vastly differently at the PTAB. For example, with the statute of limitations, if you are barred from bringing a challenge and someone else brings a challenge, then suddenly you are able to join the challenge, despite being barred. But wait—there is more. If that first party that was not barred settles and leaves the case and the barred party is the only challenger remaining, well the case must go on. A legal absurdity.