EveryMD.com LLC v. Ebay Inc. DC

The Patent Trial and Appeal Board (PTAB) saw the number of petitions for AIA review filed against NPEs drop by more than half in August 2017, down to 30 petitions from 68 in July. Petitions were brought in August against publicly traded Finjan Holdings, Inc., inventor Leigh M. Rothschild, and a mix of prolific private litigants, including Blackbird Tech LLC, Realtime Data LLC, and Uniloc Corporation Pty. Limited. Meanwhile, the Board instituted trial in August for petitions against a variety of entities, including the California Institute of Technology and publicly traded Quarterhill Inc. as well as IP Bridge, Inc.; Realtime Data; and Uniloc. The PTAB also issued final decisions throughout August in campaigns waged by publicly traded Acacia Research Corporation; Advanced Touchscreen and Gesture Technologies, LLC; Elm 3DS Innovations LLC; and Rosetta-Wireless Corporation.

Recent invalidation of two related patents (8,504,631; 9,137,192) under Alice notwithstanding, inventor-controlled EveryMD LLC has filed suit against Amazon (2:17-cv-05573), asserting a third patent (9,584,461) from the same family. The ‘461 patent generally relates to transmitting email messages between members of a group, with infringement allegations focused on the communications between buyers and sellers using “Amazon’s marketplace”. In May 2017, the same judge assigned to the new Amazon case granted a Facebook motion to invalidate the ‘631 and ‘192 patents as patent-ineligibly directed to versions of the abstract idea of “transmitting routine business communications”. EveryMD has since appealed the result to the Federal Circuit.

Inventor-controlled EveryMD LLC has sued Facebook (2:16-cv-06473) for a second time, asserting a more recently issued family member (9,137,192) of a patent that Facebook challenged in a 2014-2015 AIA proceeding (IPR2014-00242). Facebook is the third company so far sued over the ‘192 patent, which generally relates to generating webpages for members of a group; EveryMD has also asserted the patent in cases against Twitter and LinkedIn. This latest suit against Facebook brings EveryMD’s campaign defendant count to 14.

The day after EveryMD LLC’s short-lived case against LinkedIn was dismissed with prejudice, the NPE filed a new case against Airbnb (2:16-cv-03729). EveryMD’s complaint asserts two patents (8,499,047; 8,504,631) from a family of five that generally concern sending messages through an intermediary that may or may not be online. Each of these patents has been asserted by EveryMD in prior cases in its sole litigation campaign; past defendants include Alphabet (Google), eBay, Facebook, and Twitter. With the exception of this week’s case against Airbnb, all of the NPE’s cases have been dismissed, most following apparent settlements.

In the wake of a stay entered in its November 2015 case against Twitter (2:15-cv-08836), EveryMD LLC has filed a new case against LinkedIn (2:16-cv-01424). The complaint asserts a single patent (9,137,192) that generally relates to generating webpages for members of a group, attaching a chart comparing claims 1-3, 5-6, 8-9, 12, and 15 of the ‘192 patent to the process by which LinkedIn creates its member pages. The ‘192 patent is the most recently issuing (in September 2015) patent in a five member family.

An inter partes review (IPR) resulting in the cancellation of all but one claim of a patent (8,499,047), has not stopped EveryMD LLC from asserting it in a new case against eBay (2:16-cv-00595). In a complaint filed on Wednesday, the NPE accuses the company of infringing claim 4 of the ‘047 patent through its e-mail services. The patent-in-suit, which issued to EveryMD’s principals in July 2013, generally concerns sending messages through an intermediary that may or may not be online.