By Matthew Bultman
Law360, New York (December 1, 2017, 8:53 PM EST) — The Patent Trial and Appeal Board said Friday it would not review a patent that Blackbird Technologies has accused Netflix Inc. and Starz Entertainment LLC of infringing, finding a defensive patent group hadn’t shown various claims were likely invalid.

The board denied Unified Patent Inc.’s request for inter partes review of the patent, which relates to data storage technology. Unified, which challenged the patent in June, argued that a number of claims would have been obvious based on earlier inventions.

“Petitioner has not demonstrated a reasonable likelihood of prevailing on” its arguments, the PTAB wrote.

Attorneys for both sides could not immediately be reached for comment.

Blackbird Technologies is a Boston-based patent-holding company that was founded by former WilmerHale and Kirkland & Ellis LLP attorneys. It has initiated lawsuits against companies over patents related to everything from LED bulbs to sports bra technology.

Blackbird acquired this patent, which is directed to taking customer requests and writing data onto recording media, in late 2016 from a company called Innovation Automation LLC, according to U.S. Patent and Trademark Office records.

It sued Netflix and Starz a few months later in Delaware federal court. The complaint targets the streaming entertainment companies’ apps, which allow subscribers to download movies and television shows to their mobile device.

A handful of other companies, including Vimeo Inc. and SoundCloud Inc., have also been accused of using the patented technology without permission.

Unified Patents is a tech industry consortium with dozens of members, including companies like Google and NetApp, and often files challenges to patents owned by nonpracticing entities. It argued in its PTAB petition that Blackbird’s technology was well-known and obvious before the patent application was filed in 2000. It urged the PTAB to institute IPR and invalidate more than a half-dozen of the patent’s claims.

“The challenged claims of the [patent] recite subject matter that is unpatentable,” it wrote.

Ruling against Unified on Friday, the PTAB determined the group had challenged claims that were means-plus-function claims. These are claims written in a way that describes a means for performing a certain function.

The problem, the board said, was Unified had not provided the requisite claim construction analysis.

“Petitioner does not ‘identify the specific portions of the specification that describe the structure, material, or acts corresponding to each claimed function,’ as required by our rules … to enable us to determine if the asserted prior art teaches structure,” the board wrote.

“Thus,” it continued, “petitioner fails to demonstrate a reasonable likelihood of prevailing in its challenge.”

The decision comes one day after the PTAB declined to institute IPR of another Blackbird patent that is related to computer display technology and had been challenged by Lenovo(United States) Inc. Lenovo is accused of infringing with its ThinkPad Twist.

The patent at issue in the Unified case is U.S. Patent Number 7,174,362.

Unified is represented in-house by Ashraf Fawzy and Jonathan Stroud and by David L. Cavanaugh, Daniel V. Williams and Vera A. Shmidt of WilmerHale.

Blackbird is represented by Walter D. Davis Jr., Wayne M. Helge and Aldo Noto of Davidson Berquist Jackson & Gowdey LLP.

The case is Unified Patents Inc. v. Blackbird Tech LLC, case number IPR2017-01525, before the Patent Trial and Appeal Board.

–Editing by Alanna Weissman.