The largest retail forex broker in the United States, GAIN Capital, recently wrote to a US Court to review a patent case from OANDA Corp. The court is hearing patent infringement allegations by OANDA as the legal standoff between the two companies evolves.
An escalating battle between the two
GAIN Capital said today that there is enough evidence to refute the claims made by the plaintiff had “significant mischaracterizations and factual errors” that were filed by OANDA. It said that this is ample reason to deny the request to suspend the case proceedings. The company said that the claims by OANDA related to the PTAB statistics were “speculative”. It also said that there was a “50/50 chance of some claims being held unpatentable.”
Gain wants the court to look for a covered business method (CBM) review. It will allow them the means to challenge an issued patent’s validity. The company noted that OANDA cannot dispute the denial of the institution related CBM petition is a rare occurrence. It says that PTAB only denied institution 95 petitions since 2012.
GAIN can file a CBM review
As Gain has been sued with the infringement, the firm can file a CBM review petition in case the incident can be directed to a covered business method patent. The CBM review cannot be automatically kicked off. However, it has been a powerful tool for institutions accused of infringement to challenge the validity of the patents.
The company suggests,
“Rather than dispute the low number of CBM cases in which institution was denied, OANDA claims that it is “grossly misleading” for GAIN to use the denominator of 602 total cases when expressing the number of institutions as a percentage of total petitions.”
GAIN also says that if the petitions were instituted, there was a 90%+ likelihood of proving unpatentability. This could result in invalidating some or all of the claims. OANDA filed its original lawsuit earlier this year, claiming that GAIN infringers upon two of its patented technologies. Its latest motion was filed on October 14 when the company’s attorneys noted that GAIN tried to salvage its motion by submitting new evidence.
