By Drew Johnson
Just before the new year, U.S. Patent and Trademark Office Director Kathi Vidal weighed in on one of the most contentious intellectual property disputes in recent memory — and put her thumb on the scale in favor of Big Tech.
Her ruling concerns an ongoing battle between the tech giant Intel and VLSI Technology. In 2021, VLSI won a jury verdict against Intel, after the latter was found to have violated two of the smaller firm’s computer chip patents.
Intel is fighting this judgment, as one might expect. But Vidal seems to have decided to help it out. Recently, she made Intel the lead petitioner in two cases against VLSI before the Patent Trial and Appeal Board (PTAB), the quasi-judicial arm of the Patent and Trademark Office. This was a puzzling choice, given that Intel had brought neither of the challenges, and that even if it planned to, the statute of limitations had already passed.
In other words, the Patent and Trademark Office appears to be siding with a powerful tech firm that has already been found guilty of patent infringement in federal court.
The background context is that many Silicon Valley behemoths routinely disregard basic IP rights. In recent years, companies like Google, Apple, and Intel have helped themselves to patented technologies invented by smaller companies, then used their deep pockets and massive legal teams to try to get away with it.
Big Tech has a multi-part strategy it likes to use when stealing IP. It starts by simply using another company’s patented technology. When the other company sues in federal court, the Big Tech firm sends in an army of lawyers. But it also brings a separate case before the PTAB, in which it challenges the legitimacy of the patent.
By tying up the smaller competitor in not one but two legal proceedings, the bigger company forces its rival to spend immense amounts of time and money.
In this case, the parties who filed the current PTAB proceedings in 2021 are not even Intel itself but mysterious other entities supposedly unrelated to Intel: entities named OpenSky and Patent Quality Assurance. Vidal, to her credit, saw this tactic as a flagrant act of extortion., She initially removed the two firms as petitioners, as well she should have.
But instead of throwing out the cases altogether, Vidal has since allowed Intel to reinsert itself into the proceedings, appointed Intel as the lead petitioner against VLSI, and reinstated the two murky entities OpenSky and PQA to the proceedings. Worse, she has threatened to force VLSI to cover Intel’s attorney fees.
This component of Vidal’s ruling is mysterious.
By all indications, Intel violated VLSI’s IP rights — a federal jury established that. The law clearly states that Intel’s window of opportunity to challenge the VLSI patents had closed. And Vidal acknowledges that the OpenSky and Patent Quality Assurance cases were dishonest.
So why is she giving Intel another chance to make its case before the PTAB?
Patents encourage the kind of innovation and risk-taking on which our economy was built. Big Tech has consistently used its outsized wealth and influence, along with legal maneuvering, to steal IP from smaller competitors.
As head of the Patent and Trademark Office, it’s Vidal’s job to defend the integrity of the patent system and stand up for the rights of innovators. By siding with Intel, she’s done the opposite.
Drew Johnson is a government watchdog who serves as a budget, tech and energy policy expert at several free market think tanks. Read Drew Johnson’s Reports — More Here.
