Applications in Internet Time, LLC v. RPX Corp., No. 17-1698 (Fed. Cir. 2018)Annotate this Case
The Patent Trial and Appeal Board instituted inter partes review (IPR) over AIT’s objection that the RPX's IPR petitions were time-barred under 35 U.S.C. 315(b) because RPX was acting as a “proxy” for its client, Salesforce, on whom AIT had served a complaint alleging infringement of the patents more than one year before RPX filed its petitions. AIT alleged that RPX that the time bar applicable to Salesforce was applicable to RPX. The Board held certain claims of the patents unpatentable under 35 U.S.C. 103. The Federal Circuit vacated, concluding that the Board applied an unduly restrictive test for determining whether a person or entity is a “real party in interest” under section 315(b) and failed to consider the entirety of the evidentiary record. The term “real party in interest” has an expansive common-law meaning. RPX, unlike a traditional trade association, is a for-profit company whose clients pay for its portfolio of “patent risk solutions” to help extricate themselves from non-practicing entity lawsuits. Its SEC filings reveal one of its “strategies” is “the facilitation of challenges to patent validity,” to “reduce expenses.” The Board did not consider these facts, which, taken together, imply that RPX files IPRs to serve its clients and that a key reason clients pay RPX is to benefit from this practice if they are sued.