This was definitely an unexpected twist in the ongoing Gel Ball litigation! Last we heard, Prime Time Toys had mostly lost their case in a United States Patent and Trademark Office (USPTO) investigation, and we were reviewing the final details.
However, as post-trial decisions and motions were being handled, Prime Time Toys went ahead and filed for an Inter Partes Review (IPR) of the disputed patents.
Initially, the Patent Trial and Appeal Board denied this request, but earlier this month, Prime Time Toys managed to secure a Director’s Review, reversing the board’s denial. This means the case isn’t over yet—more hearings are on the way!
Some of the details here can be tricky, so let’s go over the basics of Inter Partes Reviews.
What Are Inter Partes Reviews?
The Inter Partes Review is a process for challenging the validity of patents, typically by questioning their originality or whether they’re too obvious. While there have been other ways to challenge patents, the current IPR process was introduced in 2012 to streamline disputes. This video offers a quick and easy breakdown of how the process works.
The option to file for a Director Review is actually a relatively new feature, added just three years ago.
It’s essentially an appeal option for petitioners who believe the board made decisions that were arbitrary, in error or ignored key evidence. There’s even a section on the USPTO website dedicated to Director Reviews, and this particular case is listed as a recent decision!
The Director’s Review in this case has sent Prime Time Toys’ dispute back to the Patent Trial and Appeal Board (PTAB) for further hearings, supporting most of Prime Time Toys’ points that the board’s decision was flawed.
Two points stood out as especially interesting.
First, the Director criticized the board’s conclusions on obviousness. The board had disregarded evidence suggesting that airsoft players value both realistic features and reduced pain, claiming instead that a weaker launcher, not different ammo, would be the only safe option.
Second, Hasbro and Spin Master argued against even allowing a review, claiming that multiple IPR filings and relationships among companies should disqualify a new review.
They referred to a 2019 ruling that prevents companies from repeatedly trying IPR applications by joining each other’s proceedings.
The issue? Prime Time Toys’ relationship with Gel Blaster and Splatrball was only established for procedural reasons when the USPTO grouped them on the same side for simplicity. Since they didn’t choose this cooperation, Hasbro and Spin Master’s objection didn’t hold.
This decision means more months of litigation ahead. Overturning the board’s decision to deny review doesn’t guarantee Prime Time Toys will succeed in invalidating the patents. And if they do, it could shake things up—Splatrball and Gel Blaster might be freed from royalty payments, depending on their settlement terms.
Alternatively, the patents might simply be narrowed in scope. Either way, the case will reveal more about how these rights will impact the gel blaster market.
Ah, legal language—it’s quite a ride!