The Patent Trial and Appeal Board (PTAB) saw the number of petitions for AIA review in November hold fairly steady at 111 (compared to October’s 128) as the US Supreme Court continued its review of the constitutionality of inter partes review (IPR) in Oil States v. Greene’s Energy Services, for which oral arguments were held on November 27. Among the NPEs targeted by petitions brought in November were publicly traded Quarterhill Inc. and Xperi Corporation, prolific litigant Brian Yates, and several privately held NPEs waging networking campaigns, including Alacritech, Inc.; Iridescent Networks, Inc.; Monument Patent Holdings, LLC; MyMail Ltd.; and Oyster Optics LLC. The PTAB also instituted trial in November for other IPRs against Alacritech and Quarterhill and for an IPR against Plectrum LLC. Final decisions issued by the Board in November include one in the automotive campaign waged by Paice LLC and in IPRs against InfoGation Corporation and VoIP-Pal.com, Inc., both of which saw their patents survive review.
Cases filed by Smart Wearable Technologies Inc. (SWTI), a subsidiary of publicly traded Quarterhill Inc. (f/k/a Wi-LAN Inc.), against Fitbit (5:17-cv-05068) and TomTom (1:17-cv-11652) have been opened in the Northern District of California and the District of Massachusetts, respectively. Both were transferred out of the Western District of Virginia where they were originally brought, along with cases against six other defendants, and where the court ruled that venue was improper under the US Supreme Court’s TC Heartland decision. In granting the transfers, the court denied SWTI’s argument that the defendants waived the right to contest venue by failing to plead improper venue as an affirmative defense, ruling that TC Heartland presented a significant change in the law, allowing defendants “for the first time in three decades” to “successfully argue that venue is improper in a district where it is subject to personal jurisdiction but is not incorporated and has no regular and established place of business”.
Since the US Supreme Court issued its decision in TC Heartland v. Kraft Foods Group Brands, RPX has seen an upswing in venue-related filings by both plaintiffs and defendants—with indications that some NPEs may be throwing in the towel on Texas, while others are seemingly digging in. Defendants have also begun to adapt their defensive strategies, asserting more comprehensive interpretations of the patent venue statute and proactively maintaining their right to bring venue challenges down the road.
Wi-LAN Inc. (WiLAN) subsidiary Smart Wearable Technologies Inc. (SWTI) has added another round of companies to the litigation campaign that it began last July. The new defendants are Huawei (3:17-cv-00020), Lenovo (Motorola Mobility) (3:17-cv-00022), and LG Electronics (3:17-cv-00021), each accused of infringing the sole patent-in-suit (6,997,882). The ‘882 patent generally relates to monitoring a subject based on physiological and six degree-of-freedom (“6-DOF”) data, and the accused products are Android Wear-based smartwatches offering fitness and sleep tracking.
Wi-LAN Inc. (WiLAN) subs North Star Innovations Inc. and Smart Wearable Technologies Inc. continue to add new defendants to their respective campaigns. On November 14, North Star filed suit against Integrated Device Technology (IDT) (8:16-cv-02055 ), accusing the company of infringing a group of patents acquired from Freescale. The accused products include various semiconductor memory devices. Also on November 14, Smart Wearable Technologies sued Fitbit (3:16-cv-00077) over a former Barron Associates patent. These latest suits follow WiLAN’s recent announcement of disappointing Q3 earnings.
In the third quarter of last year, Wi-LAN, Inc. joined Acacia Research Corporation to become one of the two most active publicly traded NPEs in patent litigation (among the over 20 publicly traded NPEs that RPX monitors). But while Acacia and WiLAN have continued to share that distinction over the past year, according to the NPEs’ recent earnings reports, they ended Q3 2016 with markedly different overall results.