Microsoft Gets Mixed Result at PTO

Scott Daniels | February 4, 2010

As we have previously reported, Microsoft has asked the PTO to conduct inter partes reexaminations of U.S. Patent Nos. 6,502,135 and 7,188,180, both claiming “a method of transparently creating a virtual private network (VPN) between a client computer and a target computer.” The ‘135 and ‘180 patents are assigned to VirnetX and are the subject of VirnetX’s pending infringement suit in the Eastern District of Texas against Microsoft.

Although the PTO has now granted the reexaminations, it has rejected only certain of the ‘135 and ‘180 patent claims.

With respect to the ‘135 patent, the PTO found that only three of the seven issues proposed by Microsoft raised “substantial new questions” (SNQs) of patentability. Further, the PTO rejected claims 1, 3-4, 6-10 and 12, but found that dependent claims 2 and 5 were patentable over the prior art. For two of the three SNQs, the PTO refused to reject ‘135 patent claims. (Microsoft did not challenge claim 11).

Microsoft fared much better with the ‘180 patent. The PTO found that all eight of the issues proposed by Microsoft constituted “substantial new questions” (SNQs) of patentability. The PTO then rejected most of the challenged claims for each of the eight issues raised by Microsoft, but confirmed the patentability of dependent claims 4, 20 and 35 over the cited prior art.

The patentee VirnetX has the right to respond to the rejection of its claims, and since the reexamination is inter partes, Microsoft will have thirty days from the filing date of VirnetX’s response, to comment on the issues raised in the Office Actions or in VirnetX’s response (37 C.F.R. § 1.947).

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