Federal Circuit Denies RPX's Request For En Banc Review In Applications In Internet Time V. RPX

Author:Mr Peter Snell and Daniel B. Weinger

Continuing our coverage of the Federal Circuit's Applications in Internet Time, LLC v. RPX Corp. ("Internet Time") decision, on Tuesday, October 23, 2018, the Federal Circuit denied RPX's request to rehear the case en banc. Internet Time held that the Patent Trial and Appeal Board ("PTAB") must use a flexible approach when determining what entities constitute real parties in interest for the purpose of inter partes review ("IPR"). See Applications in Internet Time, LLC v. RPX Corp., 897 F.3d 1336 (July 9, 2018) ("Internet Time"). Petitioners for IPR challenging a patent must identify all real parties in interest in their petition. 35 U.S.C. § 312(a)(2). The Director is not authorized to institute trial on the petition if the petitioner, real party in interest, or privy of the petitioner, was served with an infringement complaint for the patent in question more than one year before the petition's filing. See 35 U.S.C. § 315(b).

In Internet Time, patent owner Applications in Internet Time, LLC ("AIT") argued that RPX should have named Salesforce, Inc. ("Salesforce"), who is an RPX member, as a real party in interest and failed to do so. AIT further argued that since Salesforce was time barred RPX's petition should be time barred as well. The PTAB disagreed and invalidated claims of the challenged patent. In overturning the PTAB the Federal Circuit found that the PTAB applied an...

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