InfoGation Corp. v. ZTE (USA), Inc.

The past year has seen an ongoing back-and-forth between the Federal Circuit and Western District of Texas Judge Alan D. Albright over his substantive handling of convenience transfer motions. Now, following a series of reversals from that appellate court, Judge Albright appears to be adjusting his approach to account for those rulings—adopting a markedly different posture from prior decisions in an April 29 order granting a transfer motion from Google in litigation filed by NPE InfoGation Corporation.

Inventor-controlled InfoGation Corporation has sued Alphabet (Google) (6:20-cv-00366) over the provision of the Google Maps API, targeting features related to route optimization and natural language route description. The case follows two previous suits filed against each of HTC, Huawei, and ZTE over their provision of Android smartphones equipped with Google Maps, as well as a 2016 declaratory judgment action filed by Google against InfoGation. The asserted patent in the new case has been at issue throughout the litigation; it generally relates to producing navigation guidance from turn-by-turn directions generated from natural language output.

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.

In recent weeks, two federal judges have held that the filing of Alice motions and other briefs served as the waiver of an improper venue defense in cases in which defendants had explicitly reserved their right to challenge venue in initial pleadings. On July 5, District Judge Marilyn L. Huff of the Southern District of California denied a motion to dismiss due to improper venue filed by HTC in a case filed by InfoGation Corporation (3:16-cv-01902), citing the defendant’s February motion for judgment on the pleadings under Alice as a dispositive factor. Similarly, on July 11, Magistrate Judge John D. Love of the Eastern District of Texas issued a report and recommendation that a motion to dismiss due to improper venue filed by Carbonite should be denied, in one of the many cases filed by Realtime Data LLC (6:17-cv-00121).

The Patent Trial and Appeal Board (PTAB) saw petitions for AIA review filed against a variety of prolific litigants in June 2017, including General Patent Corporation, Intellectual Ventures LLC (IV), Quarterhill Inc. (f/k/a Wi-LAN Inc.), Realtime Data LLC, Uniloc Corporation Pty. Limited, and Xperi Corporation (f/k/a Tessera Holding Corporation). Also in June, the PTAB instituted trial for petitions brought against patents asserted in a variety of sprawling campaigns, including some waged by Acacia Research Corporation, IV, Papst Licensing, Quarterhill, and VirnetX Inc. The Board further issued final decisions throughout June in AIA reviews against patents involved in several notable campaigns, including some waged by Document Security Systems, Inc., Elm 3DS Innovations LLC, Empire IP LLC, and Quarterhill.

Inventor-controlled InfoGation Corporation has filed a second case against each of the three smartphone manufacturers, HTC (3:17-cv-00646), Huawei (3:17-cv-00647), and ZTE (6:17-cv-00645), that it named in complaints filed in a campaign begun last July. InfoGation’s new complaints assert a second patent (9,528,843), which recently issued, in December 2016, as the fifth member of the family containing the sole patent already in suit (6,292,743). The patents generally relate to distributed navigation systems operating over a wireless network, with infringement allegations focusing on the manufacture and sale of Android smartphones that include Google Maps. This second round of complaints follows a flurry of litigation activity, in both the Northern and Southern Districts of California, as well as before the Patent Trial and Appeal Board (PTAB), to attack the timing, venue, and substance of InfoGation’s July 2016 complaints.

Google has filed a complaint against InfoGation Corporation (3:16-cv-05821), seeking a declaratory judgment that Google and its Android OEM partners do not infringe a single patent (6,292,743) generally related to producing navigation guidance from turn-by-turn directions generated from natural language output. The lawsuit comes in response to three cases brought by the NPE against HTC (3:16-cv-01902), Huawei (3:16-cv-01903), and ZTE (3:16-cv-01901) in July, which alleged that the companies’ Android smartphones infringe the ‘743 patent through their inclusion of Google Maps. Those proceedings remain in initial pleadings.