The plot, as they say, thickens in the continuing battle between SpaceX and Blue Origin over rocket sea landing technologies. On the heels of decisions by the Patent Trial and Appeal Board regarding SpaceX’s challenges of Blue Origin’s original “barge landing” patent, U.S. Patent No. 8,678,321 (“’321 Patent”), the USPTO has made public a child patent application of the ‘321 Patent via its Public PAIR service.
As predicted previously, this application is in fact a reissue patent application! That is, Blue Origin has asked that the USPTO to correct errors in the ‘321 Patent and issue a new patent. If successful, Blue Origin will surrender the ‘321 Patent in exchange for a new patent, providing SpaceX with intervening rights with respect to infringement of the ‘321 Patent, as discussed here.
How is Blue Origin approaching this? In its original application, Blue Origin incorporated by reference several other patent applications it filed, including applications resulting in U.S. Patents 8,408,497 and 8,878,111. In its reissue application, Blue Origin has pulled 14 figures and significant amounts of text from those applications in order to address issues with the original applications.
The reissue application contains a whopping 84 claims, including the 16 claims which issued in the ‘321 Patent.
This reissue application filing may indicate that Blue Origin will eventually “give up” fighting SpaceX’s inter partes review challenge of the ‘321 Patent. If the reissue application is allowed while the inter partes review is ongoing, in the inter partes review Blue Origin may simply concede the unpatentability of the ‘321 Patent, surrender the ‘321 Patent to the USPTO and, if possible, pursue SpaceX with its new reissue patent.
If SpaceX feels that the reissue application still improperly reads on SpaceX activities, there are avenues it may use to challenge the Blue Origin reissue patent application while it remains an application, as well as post grant challenge avenues such as inter partes review.