Kinetech, Inc. et al v. The Lime Group, Inc. et al DC

This past week the Federal Circuit invited Amazon and several of its customers to file a combined response to a petition for rehearing of a June ruling in their favor. A panel of the appeals court held that the Kessler doctrine precludes PersonalWeb Technologies, L.L.C. from charging customers with infringement through the use of Amazon Simple Storage Service (S3), given a June 2014 stipulated dismissal with prejudice in a Texas suit against Amazon—a dismissal that followed an unfavorable claim construction decision but, critically according to PersonalWeb, before a noninfringement ruling. The NPE characterizes the June decision as a “radical reconfiguration” of preclusion law that requires rehearing. Lawyers for Amazon and its customers have since requested an extension to early October of the deadline to respond to the request for rehearing because they are tied up both with a trial in the Eastern District of Texas and with a separate appeal (concerning noninfringement by Amazon’s CloudFront) from the same underlying litigation against PersonalWeb.

PersonalWeb Technologies, L.L.C. revived its sprawling litigation campaign in January 2018, suing a large number and wide variety of companies over their use of certain web hosting and caching technologies. That wave of new filings prompted Amazon to file a declaratory judgment action against the NPE that February, seeking judgments of noninfringement for Amazon Web Services customers utilizing Amazon Simple Storage System (S3)—further asserting that those suits were barred due to claim preclusion and preclusion under the Kessler doctrine in light of a previously dismissed case between Amazon and PersonalWeb. Amazon has now largely prevailed with respect to its preclusion claims, as District Judge Beth Labson Freeman has just ruled that PersonalWeb is collectively barred under the asserted preclusion theories from litigating any infringement claims based on S3 against Amazon or its customers. Judge Freeman has also declined to weigh in on a dispute over standing stemming from an unusual contractual arrangement affecting PersonalWeb’s ownership of the asserted patents.

Amazon has filed a Northern District of California complaint (5:18-cv-00767) against PersonalWeb Technologies, L.L.C., seeking declaratory judgments of claim preclusion and preclusion under the Kessler doctrine, barring the NPE’s recent spate of lawsuits against a large number and wide variety (termed a “salmagundi”) of defendants, and of noninfringement of the patents that PersonalWeb has asserted against that salmagundi. The patents generally relate to identifying data items in a data processing system. Amazon pleads that a 2011 case against it, dismissed in 2014 after the plaintiff was unable to prove its infringement case in light of the court’s claim construction ruling, ended any claim that customers of Amazon Web Services infringe based on the use of Amazon Simple Storage System (S3).

So far in the second half of January, PersonalWeb Technologies, L.L.C. has added almost a dozen more cases to the litigation campaign that it brought back to life earlier in January with over 35 new cases. The latest defendants are Gartner (Capterra) (1:18-cv-00133), IAC (Match Group) (1:18-cv-00136), Karma Mobility (1:18-cv-00134), LiveChat (1:18-cv-00135), and WeddingWire (1:18-cv-00137), each sued in the District of Delaware. They follow a wave of cases filed against six more defendants in the Eastern District of Texas the week before and two other sets of suits filed in various districts, including the Northern District of California and the Southern District of New York, earlier in the month. The complaints seek past damages for the alleged infringement of five expired patents generally related to “methods for identifying data items in a data processing system”, with infringement allegations focused on the manner in which the defendants’ websites distribute and serve web content in light of what content has been updated.

The litigation campaign of PersonalWeb Technologies, L.L.C. has sprung back to life with the filing of more than three dozen new cases, one each against Advance Publications (Reddit), Airbnb, Atlassian, Kickstarter, Paypal (Venmo), Salesforce (Heroku), Square, and Webflow, among others, some in the Northern District of California, others in the Southern District of New York. The new complaints seek past damages for the alleged infringement of five expired patents already at issue throughout the campaign, which began in December 2011. As noted in an August 2013 order construing multiple claim terms recited in them, the patents-in-suit generally relate to “methods for identifying data items in a data processing system”, with infringement allegations focused on the manner in which the defendants’ websites distribute and serve web content in light of what content has been updated. Level 3 Communications appears as PersonalWeb’s coplaintiff in the complaints in satisfaction of a contractual obligation stemming from a 2000 agreement associated with the first transfer of (partial) rights to the asserted patents from original assignee Kinetech.

The Federal Circuit has vacated a final decision by the Patent Trial and Appeal Board (PTAB) in an inter partes review (IPR) filed by Apple (IPR2013-00596). In a precedential opinion issued on February 14, the court ruled that the PTAB had not adequately justified its holding that certain claims from a data processing patent (7,802,310) asserted against Apple by co-owner PersonalWeb Technologies, LLC are invalid as obvious (2016-1174).