The Patent Trial and Appeal Board (PTAB) saw 347 petitions for America Invents Act (AIA) review in the first quarter of 2023, including 340 petitions for inter partes review (IPR) and seven petitions for post-grant review (PGR). Filings largely held steady compared to Q1 2022 and Q4 2022, when 336 and 330 petitions were respectively filed.
Despite that overall stability, USPTO Director Kathi Vidal has had to face a number of contentious issues since she assumed her leadership role last April. One of the most hotly debated has been the question of what sanctions should be imposed for misconduct by petitioners during the AIA review process. This came to the forefront in late 2022 due to allegations of gamesmanship before the PTAB: In October, Vidal demoted third-party IPR petitioner OpenSky Industries to a silent understudy role for its abuse of the IPR process by making a set of unusual financial offers designed to “extract rents” from patent owner VLSI Technology LLC and joined copetitioner Intel, among other offenses. December saw Vidal double down, dismissing OpenSky entirely and doing the same to another third-party challenger, Patent Quality Assurance (PQA), for similar behavior and making additional misrepresentations.
However, on January 27 and February 3, Vidal partially walked back those sanctions orders, restoring both PQA and OpenSky as petitioners alongside Intel and ordering OpenSky to pay attorney fees and costs to VLSI. The OpenSky IPR has since proceeded to a final written decision in which the PTAB invalidated all petitioned claims—including every claim asserted from one of the two patents that Intel was found to infringe in a $2.2B infringement verdict in March 2021.