Earlier this month, RPXnoted two recent decisions issued in patent cases and related to discoverability of litigation funding agreements and communications with third-party funders. This week saw a notable development in one of those cases, with a California judge ruling that while Impact Engine, Inc.’s agreement and communications with its third-party funder are relevant to the company’s patent infringement suit against Alphabet (Google) (3:19-cv-01301), they are also protected from discovery by the work product doctrine.
With the litigation finance industry reporting record fundraising amid the COVID-19 recession, the impact of third-party funders on the litigation landscape looks poised for continued growth. Expect the debate over disclosure of third-party litigation funding to heat up, as an increasing number of plaintiffs launch campaigns backed by wealthy investors—and their targets argue for greater transparency into funding arrangements. Meanwhile, in recent months, two decisions in patent cases have caught the attention of those monitoring discoverability of third-party funding agreements and communications between patent holders and funders.
Impact Engine, Inc. has filed suit against Alphabet (Google) (3:19-cv-01301), alleging that the tech giant has infringed all six members of a family of patents generally related to a “multimedia communication system” that comprises a template repository and an interactive “project builder”. The Southern District of California complaint alleges multiple interactions between the two companies beginning over a decade ago, during which Impact Engine purportedly disclosed its “proprietary Flash Ad Engine” and demonstrated “a Google-specific prototype” built upon request and after which Google released its Display Ad Builder product. The plaintiff accuses Google of infringement through the provision of its advertisement platform (e.g., Google Ads, AdSense, AdWords, Display Ad Builder, Display Network, Doubleclick, Marketing Platform, and Web Designer).