PTAB Petitions Held Steady in 2022 as Vidal Pushed Forward on Sanctions for Abuse of Process

Last year, validity challenges at the Patent Trial and Appeal Board (PTAB) essentially matched 2021 levels as USPTO Director Kathi Vidal moved forward on a series of promised reforms. In 2022, 1,358 petitions for America Invents Act (AIA) review were filed with the PTAB, just 28 fewer petitions than the year before—including 1,323 petitions for inter partes review (IPR) and 35 petitions for post-grant review (PGR).

The fourth quarter saw 330 petitions for AIA review, including 326 IPR petitions and four PGR petitions. Filings in Q4 were around 3% lower than both Q3 2022 (when 340 petitions were filed) and the fourth quarter last year (which saw 339 petitions).

Among the most closely watched issues facing Vidal after her April 2022 confirmation was the issue of sanctions for petitioner misconduct—a topic of keen interest among patent stakeholders due to claims of gamesmanship in IPRs filed by two third-party challengers, OpenSky Industries and Patent Quality Assurance (PQA), against VLSI Technology LLC. This past spring, after the PTAB had already instituted trial in both actions, VLSI disclosed that OpenSky had offered to sabotage its own IPRs in exchange for payment, prompting widespread outcry and leading Vidal to initiate director review in those proceedings. It soon came to light that OpenSky had also sought payments, and even an acquisition offer, from joined copetitioner Intel. In October, Vidal demoted OpenSky to a silent understudy role for its abuse of the IPR process through those offers as well as through discovery misconduct. December saw Vidal double down, dismissing OpenSky entirely and doing the same to PQA, finding that the latter engaged in similar behavior and made additional misrepresentations.

However, Vidal issued a third set of sanctions orders in the new year that walked back some of those punishments. On January 27 and February 3, Vidal restored both PQA and OpenSky as petitioners, explaining as to PQA that she was seeking to prevent it from arguing that its alleged status as a “unlawfully dismissed party” placed it outside her jurisdiction. Vidal additionally ordered OpenSky to pay attorney fees and costs to VLSI, rejecting the petitioners’ counterarguments as to due process and the propriety of the sanctions, and concluding that it had harmed VLSI—and the patent system itself—through its conduct.

See RPX Insight for more on those latest sanctions rulings. Further coverage of this and other trends impacting the PTAB last year can also be found in RPX’s report on the fourth quarter and 2022.