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An Update on Patent Litigation, the Patent Marketplace, and New Cases
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Monday, March 20, 2023
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RPX members are exclusively invited to join a live RPX Community webinar presented by guest law firm professionals practicing in China who will provide an overview of Chinese patent litigation. The program will share best practices and help viewers understand proceedings in China involving a foreign party. This introductory session is designed for practitioners new to Chinese patent litigation looking to expand their expertise. The live event is on March 23rd (PDT), and a recording will be rebroadcast on Tuesday, March 28th (BST). This webinar may be eligible for CLE credit in some states. Visit RPX Insight to register or for more details.
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Top Insight
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On March 16, the London High Court of Justice released its long-awaited judgment in InterDigital v. Lenovo, imposing a $138.7M global fair, reasonable, and nondiscriminatory (FRAND) license against defendant Lenovo after finding that neither party’s offers had been FRAND. The rate was closer to what Lenovo had sought (totaling $80M) than US-based InterDigital, Inc.’s proposal ($337M). Notably, the court also found that Lenovo had behaved as a willing licensee during licensing negotiations, but that InterDigital had not acted as a willing licensor due having consistently offered supra-FRAND rates. The court also rejected InterDigital’s proposed rate-setting methodology. This sweeping, 225-page decision marks the second time that a UK court has issued a FRAND determination in a standard essential patent (SEP) dispute.
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Patent Litigation Feature
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District Judge Alan D. Albright has dismissed, without prejudice, a case brought by Traxcell Technologies, LLC in December 2020 and headed, until that dismissal, for jury selection and trial in his courtroom on April 3. Sole remaining defendant Verizon (Verizon Wireless) had filed an emergency motion to dismiss the case for lack of subject matter jurisdiction, arguing that because a Texas state court ordered Traxcell’s assets, including its patents, to be turned over to a receiver for sale, the plaintiff no longer owned the three remaining asserted patents. The Texas state court was enforcing an attorney fee award in an an earlier Eastern District of Texas case; Traxcell—represented by litigation counsel (Ramey LLP) disclosed as having a financial interest in the outcome of the campaign—appealed that award but failed to post a bond. Unless one of Traxcell’s last-ditch efforts to secure relief from this mess is successful, Judge Albright’s ruling might spell the end of this campaign.
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Last September, District Judge Gregory B. Williams took the federal Delaware bench, alongside Chief Judge Colm F. Connolly and Judges Richard G. Andrews and Maryellen Noreika, after Judge Leonard P. Stark left to join the Federal Circuit. Delaware has long been one of the busiest venues for patent litigation; it is therefore no surprise that six months into his tenure Judge Williams has now faced and resolved a good number of issues arising from the patent portion of his docket. In that time, with several trials on the horizon, he has issued multiple claim construction rulings; considered and resolved multiple Alice challenges; addressed discovery related to a third-party litigation funder; navigated, at least initially, a potential standing issue arising from the international source of patents that the plaintiff purportedly acquired through a receivership; and refused to enter a default judgment because the plaintiff’s pleading in the complaint “can charitably be described as sparse”, too sparse to establish infringement even upon default.
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Patent Watch
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Made public last week, a battle between Sysco and its litigation funder Burford Capital continues to heat up, with recent developments shedding light on the potential influence—and even power—that third-party funders can have over their clients’ settlements.
Read More (RPX Members Only) >>
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New Patent Litigation
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Delaware plaintiff NexGen Control Systems LLC has filed its first litigation, suing NXP Semiconductors in two separate Eastern District of Texas complaints, one targeting the provision of various automobile computing products, including the Peripheral Sensor Interface 5 (PSI5) system, FXOS8700CQ series devices, and the MC33789 Airbag System Basis Chip and related inertial sensors (5:23-cv-00022); and the other targeting the provision of various devices such as chipsets, controllers, drivers, and integrated circuits (5:23-cv-00025). All six patents now in suit share a development history, at Mitsubishi Electric Corporation (MELCO), multiple assigned portfolios of which have spawned recent litigation.
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Virtual Creative Artists, LLC (VCA) has filed a new complaint against Alphabet (Google) (6:23-cv-00197), asserting four patents described as generally related to “creating and distributing media content”. The case, filed in the Western District of Texas, targets the provision of Google Photos. A March 2022 suit in the same campaign filed in the same district against Meta Platforms (f/k/a Facebook) ended last December after a noticed settlement, while a complaint filed earlier that month against Twitter remains pending, in the earliest stages, in the Northern District of Illinois.
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Inventor-controlled ICPillar LLC has filed its first litigation, suing ARM (1:23-cv-00282) in the Western District of Texas. The company is alleged to infringe two patents generally related to designing an integrating circuit that controls an electronic device through the provision of certain integrated circuit design tools, including “recent and current versions of Arm’s IP Configuration Tools, Arm Socrates IP Tools, and Arm Development Studio (including what is currently called the Pack Manager)”.
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ASUSTek (6:23-cv-00178) is the latest defendant to be added to the litigation campaign that Hyperquery LLC—a plaintiff connected with a familiar patent monetization figure—launched in January 2023 with suits against HP, LG Electronics (LGE), and Samsung. In the new Western District of Texas complaint, the plaintiff asserts a single patent generally related to providing an optimized display of information on a device based on a user’s search query. ASUSTek is accused of infringement through the provision of smartphones that support a “pre-installed Google search engine” and “pre-installed Google Play Store”.
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Delaware plaintiff Convergent Assets LLC has launched its first litigation campaign, suing Snap (6:23-cv-00181) in the Western District of Texas. The NPE asserts a single patent generally related to targeted advertising technologies. Snap is accused of infringement through the provision of the Snapchat Ads platform. While Convergent Assets may be new to litigation, its ties, including to the source of its patent-in-suit, look familiar.
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Xueshan Technologies Inc., a subsidiary of Quarterhill Inc. (f/k/a Wi-LAN Inc.), has filed a second complaint in the Eastern District of Texas against Renesas (2:23-cv-00091). Five patents received from MediaTek are asserted in this complaint, with infringement allegations targeting a wide array of computing products, including converters, memory protection units, microcontrollers, and processors. The fresh litigation from Xueshan Technologies drops as the ice around litigation in one of Quarterhill’s oldest campaigns, dating back to 2007, has thawed.
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The Phelan Group, LLC has filed what appears to be its first litigation, accusing KIA (2:23-cv-00094) and Toyota (2:23-cv-00093) of infringing six patents generally related to a system for authenticating a driver of a vehicle through the provision of automobiles that support certain advanced driver assistance systems (ADAS). At issue in both new Eastern District of Texas complaints are features for authenticating drivers and monitoring vehicle usage (e.g., as to KIA, via KIA Drive Wise and KIA Connect).
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In Case You Missed It
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The wide-ranging dispute between VLSI Technology LLC and Intel over patents originally developed at NXP Semiconductors has been playing out in three district courts—the Western District of Texas, the District of Delaware, and the Northern District of California—as well as before the Patent Trial and Appeal Board (PTAB). Nearly a year ago, District Judge Alan D. Albright made public an earlier denial of Intel’s motion to amend its answer in the first case, to assert a license defense based on the 2020 purchase of Finjan, Inc. by Fortress Investment Group LLC, to which VLSI is tied. At the time, it seemed unlikely that Judge Albright’s would be the definitive district court word on the subject of that license defense, but a ruling last week from Northern District of California Magistrate Judge Nathanael M. Cousins, that possibility has become somewhat more likely.
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