patent law

For all its irritations, probably principal among them the size of time every little thing takes, patent litigation remains among one of the most fascinating areas of regulation to comply with. Recently, I took a hard check out the influence of a nuisance-value strategy to resolving patent cases, in the context of a blockbuster choice provided by one of the nation’s leading patent jurists. Today, I flip to the opposite end of the problems range with a consider the potential consequences of the Federal Circuit’s reversal of VLSI’s $2 billion March 2021 WDTX judgment against Intel. That judgment was based upon violation of two patents insisted by VLSI in a 2019 WDTX grievance, one of the 81 instances provided on Docket Navigator involving these 2 parties when you take into consideration Intel’s very own IPRs and filings by third-parties testing VLSI’s patents. If there is one warranty from the Federal Circuit’s opinion, it is that the events have the alternative of continuing to litigate each other for many years to come, unless the predicament can be broken by some sort of negotiation someplace along the way.

Before we enter into the compound of the Federal Circuit’s viewpoint, I occurred to take a look at the column I created on these pages following the initial mega-verdict acquired by VLSI back in 2021. There, I stated “3 immediate takeaways” from the judgment, which took the type of 3 predictions. Each of those three predictions hit the mark. Initially, I predicted that NPE’s utilizing licenses sourced from well established modern technology firms would remain to see success before courts. Even a brief consider a few of the post-VLSI verdicts has borne that out. Second, I stated that the buzz around the VLSI verdict would increase need for litigation financing in the patent area– one more easily validated development. Lastly, I anticipated a raised enthusiasm amongst patentees for the WDTX. On that one I will just give myself half-credit; despite the fact that WDTX continues to be a popular location, there were a couple of curveballs (e.g., the WDTX Court Reassignment Order of July 2022, that caused ongoing passion in the EDTX as an alternate recommended location for patent owners). Still, in overall, the influence of the initial VLSI trial mega-verdict has actually been very easy to see. Post-Federal Circuit, nonetheless, clearness may be a little tougher to attain.

To recognize why, let me summarize what the Federal Circuit did. Initially, the panel verified the searching for of infringement of VLSI’s ‘373 patent, while also throwing out the searching for of infringement under the teaching of matchings for the ‘759 license. A. 500 batting average could be good for a Little Leaguer, yet when it comes to infringement findings in a high-stakes appeal, that end result is not perfect. Making things more difficult for VLSI was the Federal Circuit’s following action, where it found that VLSI had actually used an infirm problems calculation in its discussion to the court. Consequently, the panel tossed out the damages honor on the ‘373 patent, with a remand to the area court for a new test on problems. As part of that remand, the panel shared some thoughts on the improvements that VLSI can make to its problems discussion if it wishes to see the post-remand award affirmed on charm. Lastly, the panel deemed Judge Albright’s rejection to allow Intel include a license protection an abuse of discernment, which ought to result in added work on remand for both celebrations as they try to sort out whether Intel lucked into a certificate to VLSI’s licenses as a result of an earlier settlement with an additional license assertion entity. In sum, there is plenty even more ahead prior to we also get to the point of attempting to handicap VLSI’s odds on the following government circuit appeal from this case.

Including in the complexity of course is the reality that the ‘373 patent was the subject of a previous successful IPR, with a June 2023 ruling in Intel’s favor working its way toward Federal Circuit testimonial. At the same time, at the very least one record suggests that VLSI is “rumored to be insured for $300 million” on the now-overturned decision, which if real would make it tough to see why VLSI would amuse settlement deals south of whatever insurance policy quantity it has actually acquired. When you include that Intel itself has actually utilized the time since the very first VLSI judgment to participate in a well-publicized patent monetization play of its very own, it is not hard to see that this situation remains to offer as combustible a mix as one can expect in the world of big-ticket patent enforcement.

Ultimately, there should be ways for the events to come with each other and locate a way to get this scenario dealt with. Yet that has not occurred yet and the clear import of the Federal Circuit’s choice is the truth that we are gone to a minimum of a few even more rounds of resisting in WDTX, at least in terms of the adjudication of Intel’s license protection, along with the damages trial remodel. How will all of it shake out? That continues to be an open question. In the meantime, expect lots of ongoing conversation of the influence of the Federal Circuit’s placing VLSI’s billions boost into reverse drive, at the very least in the meantime.

Please feel free to send comments or questions to me at or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at or follow him on Twitter: @gkroub.