Are All RPX And Unified Patents Members Real Parties In Interest For IPRs?

On October 2, 2020, the PTAB issued a key decision in RPX Corporation v. Applications in Internet Time, LLC (available here) finding that Salesforce was a real party in interest to an RPX inter partes review (and, as such, declining to institute RPX’s IPR because RPX filed it after Salesforce’s 1-year bar date). It is a fact specific decision (with the gist being that RPX was acting on behalf of its member Salesforce in filing the IPR), but patent owners will use the decision to argue that any IPR filed by RPX or Unified Patents should not be instituted unless all of their members are listed as real parties in interest (or, at a minimum, any member presently in litigation concerning the patent-at-issue is not listed as a real party in interest). The decision may also spell trouble for any IPR filed by RPX or Unified Patents 1 year after a complaint asserting the patent-at-issue has been served on any of their members. It will be interesting to see how, if at all, RPX and Unified Patents change their business models in view of the decision and how their members will react to the decision. All things considered, a favorable decision for patent owners faced with potential IPRs from RPX and Unified Patents, as it provides a potential avenue to have the IPR denied.