Chicago Board Options Exchange, Incorporated v. Realtime Data, LLC DC

Prolific litigant Realtime Data LLC (RTD) saw its long-running litigation campaign splinter off into a variety of new districts in the wake of the US Supreme Court’s decision in TC Heartland, both through transfers (typically from Texas to California) and through new filings. The campaign’s defendant count now tops 110, with court disclosures revealing that the NPE has received funding from public litigation fund Juridica Investment Limited and Brickell Key Investments LP (which is handling Juridica’s run-off). Amidst that expansion, RTD subsidiary Realtime Adaptive Streaming LLC (RTAS)—which joined the campaign in September 2017, asserting a family of homegrown video compression patents—moved in April 2018 to consolidate various pending lawsuits in either Texas or Colorado, the latter of which has in particular seen many new filings by RTD and RTAS since TC Heartland. However, that effort hit a wall earlier this month, when the Judicial Panel on Multidistrict Litigation (JPML) denied the motion. Meanwhile, RTD has filed eight new suits in Delaware throughout early August, asserting a well-worn set of data compression and storage acceleration patents against Hitachi, Nutanix, and SoftNAS, among others.

In June 2018, the Patent Trial and Appeal Board (PTAB) saw petitioners wage validity challenges against a variety of prominent NPEs. Among those hit by petitions for AIA review in June was Intellectual Ventures LLC (IV), which has not filed any new litigation in the US since October 2017, but continues to assert patents overseas; and NPEs affiliated with Fortress Investment Group LLC and Industrial Technology Research Institute. Also in June, the PTAB instituted trial for two IPRs against affiliates of top litigant IP Edge LLC, which remains the most prolific patent plaintiff of the past 18 years by the number of defendants added to US patent suits. In addition, the Board issued final decisions in IPRs against IV, the California Institute of Technology, inventor Daniel L. Flamm, and frequent litigants Realtime Data LLC and Uniloc Corporation Pty. Limited.

Throughout May 2018, the Patent Trial and Appeal Board (PTAB) saw activity in multiple long-running campaigns, including challenges brought against patents and plaintiffs with colorful and tangled litigation histories. The Board saw petitions for AIA review brought in May against Publishing Technologies LLC, an NPE controlled by patent attorney and frequent litigant Bradley D. Liddle; in the mobile devices campaign waged by AGIS Software Development LLC; and in the networking campaign brought by XR Communications, LLC. Also in May, the Board instituted trial for inter partes reviews (IPRs) against Iridescent Networks, Inc. and Oyster Optics, LLC. Final decisions issued in May include three against prolific plaintiff Realtime Data LLC, which saw claims cancelled from one of its data compression patents while another two survived unscathed, as well as final decisions cancelling claims from patents held by General Patent Corporation and VirnetX Holding Corporation.

Both Realtime Data LLC (RTD) and its subsidiary Realtime Adaptive Streaming LLC (RAS) recently added cases to their respective wings of what has become one of the longest-running, widest-ranging active litigation campaigns. RTD asserted three familiar data compression patents against Facebook (1:18-cv-01373), targeting its Zstandard compression algorithm, as well as products and services “that incorporate the algorithm”. Meanwhile, RAS tagged Charter Communications (1:18-cv-01345), Comcast (1:18-cv-01446), and Cox Communications (8:18-cv-00942), asserting three equally familiar video compression patents against the companies’ respective broadcasting services, training infringement allegations—as it has in most of its cases in this campaign—on the use of the H.264 video compression to standard “to deliver HD video broadcasting products/services” to customers.

Last week saw a barrage of new complaints filed in the long-running campaign litigated by Realtime Data LLC (RTD) and its subsidiary Realtime Adaptive Streaming LLC (RAS). RTD asserted overlapping subsets of patents from its data compression portfolio in new cases against Cloudera (1:18-cv-00653), Huawei (6:18-cv-00182), and IBM (6:18-cv-00188). Meanwhile, RAS filed complaints asserting overlapping subsets of patents from its video compression portfolio against Alphabet (Google) (2:18-cv-03629), Avaya (1:18-cv-01046), Broadcom (1:18-cv-01048), and Wowza Media (1:18-cv-00927). With these new cases, the number of defendants in this sprawling litigation campaign now approaches 100, with the number of patents asserted holding steady at just shy of 40 and the number of petitions for inter partes review (IPR) of various of those patents topping 50.

In March 2018, the Patent Trial and Appeal Board (PTAB) saw petitions for inter partes review (IPR) filed in a variety of notable campaigns, including those waged by publicly traded Quarterhill Inc.; privately held XR Communications, LLC; and inventor Leigh M. Rothschild. The Board also instituted trial throughout March in campaigns brought by Oyster Optics, LLC and Uniloc Corporation Pty. Limited. In addition, the PTAB granted in March a motion to amend in two IPRs against prolific plaintiff Realtime Data, LLC, also issuing final decisions involving patents asserted by Uniloc; Papst Licensing GmbH & Company Kg; Evolved Wireless LLC; Game and Technology Co., Ltd; and TQ Delta LLC.

The Patent Trial and Appeal Board (PTAB) saw activity in a variety of notable campaigns throughout February 2018, with petitions for inter partes review (IPR) filed against publicly traded Quarterhill Inc. as well as Fundamental Innovation Systems International LLC, Intellectual Ventures LLC, Realtime Data LLC, and Uniloc Corporation Pty. Limited. The Board also instituted trial in February for IPRs against General Patent Corporation, Oyster Optics, LLC, and Uniloc. In addition, the PTAB issued final decisions throughout February in IPRs against a range of different patent owners, including publicly traded NPEs (Acacia Research Corporation; InterDigital, Inc.; and VirnetX Inc.), an individual inventor (Daniel L. Flamm), and privately held plaintiffs (ChanBond, LLC; Makor Issues & Rights Ltd.; Papst Licensing GmbH & Company Kg; and Personalized Media Communications, LLC).

So far in 2018, Realtime Adaptive Streaming LLC (RAS) has filed two new cases in the sprawling campaign that its parent entity, Realtime Data LLC (RTD), has been litigating since April 2008 and that it joined as a plaintiff last August. The new suits accuse Adobe (1:18-cv-10355) and Samsung (6:18-cv-00113) of infringing the same set of seven patents, five of which are drawn from a homegrown family of nine video compression patents, and the other two of which, broadly concerning similar subject matter, have been recently acquired. The accused devices include a long list of Adobe products and an even longer list of Samsung products (including EXYNOS application processors, smartphones, tablets, DVRs, Blu-ray players, cameras, and surveillance cameras) that operate in compliance with the H.264 and/or H.265 video compression standards. RAS’s latest cases bring its campaign defendant count to nearly 90.

The Patent Trial and Appeal Board (PTAB) saw petitions for inter partes review (IPR) filed in large campaigns affecting a variety of market sectors in January, including the automotive campaign waged by Intellectual Ventures LLC; frequent plaintiff Realtime Data LLC’s long-running data compression and media streaming campaign; the USB device charging campaign brought by Fundamental Innovation Systems International LLC; and the mobile device campaign run by IPA Technologies Inc., a subsidiary of publicly traded Quarterhill Inc. The Board instituted trial in January for petitions against Realtime Data and in the sprawling, 12-year anti-malware campaign still being litigated by publicly traded Finjan Holdings, Inc. The PTAB also issued final decisions in January in IPRs against Realtime Data; ChriMar Systems, Inc.; and IP Bridge, Inc.

Realtime Adaptive Streaming LLC (RAS) has sued Apple (1:17-cv-02869), asserting four members of its homegrown family of video compression patents, as well as the two patents that it appears to have acquired some time before it began litigating them in cases filed against Netflix and Sony last week. At issue with respect to the homegrown patents are Apple’s streaming services (e.g., iTunes Store, Apple Music) and related products, including the iPhone, iPad, Apple TV, Mac, iPod, and Apple Watch (“devices with iOS 3.0 and later and computers with Safari 4.0 and later”). As to the two acquired and asserted patents, RAS targets Apple products and services that implement the H.265 video compression standard, including the iPhone, iPad, Apple TV, Mac, iPod, Apple Watch, and iMovie, as well as macOS High Sierra, iOS 11, and Quicktime.

Thanksgiving week provided no break in filing for related plaintiffs Realtime Data LLC (RTD) and Realtime Adaptive Streaming LLC (RAS). The latter sued Netflix (1:17-cv-01692) and Sony (1:17-cv-01693) over the same six video compression patents, asserting a seventh such patent in the case against Sony. As it has in all of its complaints, RAS accuses the new defendants of infringement through provision of products and services operating in compliance with the H.264 (or H.265) video compression standard. In particular, RAS targets Netflix’s streaming service, while Sony is alleged to infringe through a wide range of devices, including video security cameras, still and video cameras, video recorders and satellite receivers, various models of PlayStation, smart TVs and set-top boxes for streaming media, and Blu-Ray and DVD players. Meanwhile, RTD has added to the campaign a suit accusing Reduxio Systems (1:17-cv-01676) of infringement through provision of software and/or services (and related hardware) offering data compression and deduplication features.

So far in November, a new case has been added to each portion of a long-running, chaotic litigation campaign, one waged by Realtime Data LLC (RTD), the New York plaintiff involved from the campaign’s beginning, and the other waged by Realtime Adaptive Streaming LLC (RAS), a Texas subsidiary of RTD only involved in the campaign since this past August. RTD has filed suit against Fortinet (1:17-cv-01635) in the District of Delaware, asserting four data compression patents, already at issue in other cases brought by RTD, against Fortinet’s network security products Fortigate and Fortigate IPS. Meanwhile, RAS has filed suit against Polycom (1:17-cv-02692) in the District of Colorado, asserting five video compression patents, already at issue in earlier RAS cases, against Polycom’s telepresence and other video communication products that use the H.264 video compression standard. These new suits follow the cancellation by the PTAB of claims from one of the most frequently asserted RTD patents.

In October 2017, the Patent Trial and Appeal Board (PTAB) saw the filing of petitions for inter partes review (IPR) against a variety of frequent litigants, including publicly traded NPEs Acacia Research Corporation and Xperi Corporation, as well as privately held Monument Patent Holdings, LLC and Uniloc Corporation Pty. Limited. The Board also instituted trial in October for IPRs against multiple Acacia subsidiaries, Uniloc, and Papst Licensing GmbH & Company Kg. In addition, the PTAB issued an IPR final decision cancelling multiple claims from a data compression patent held by prolific plaintiff Realtime Data LLC, including the single claim that Riverbed Technology (one of the petitioners for the IPR) was found to infringe in a $4.3M verdict in May, with other final decisions issued in campaigns waged by TQ Delta LLC and publicly traded Quarterhill Inc. IPRs against IP Bridge, Inc. and Mobile Telecommunications Technologies, LLC also ended in termination in October after the patent owners requested adverse judgments.

This past week saw new lawsuits from each of two NPEs affiliated with Gerald Padian and Richard Tashjian, partners in the New York law firm Tashjian & Padian, waging a single litigation campaign, Realtime Data LLC since April 2008 and Realtime Adaptive Streaming LLC since August 2017. Realtime Data added cases against Code42 Software (1:17-cv-02479) and Nexenta Systems (2:17-cv-07690) to the portion of the campaign litigating patents generally related to data compression or to accelerated loading of operating systems and applications upon system boot or application launch. Meanwhile, Realtime Adaptive has sued Hulu (2:17-cv-07611) and Cisco (6:17-cv-00591) over patents broadly directed to video and audio data compression and distribution. The number of defendants in the Realtime campaign has now topped 75.

In September 2017, the Patent Trial and Appeal Board (PTAB) saw more than ten petitions filed in NPE campaigns involving networking and related technologies such as cybersecurity, including those waged by publicly traded Finjan Holdings, Inc.; prolific private litigant Realtime Data LLC; and Oyster Optics, LLC. Trial was instituted in September for an inter partes review (IPR) against Finjan and in IPRs against other frequent plaintiffs, including MyMail, Ltd. and Sound View Innovations, LLC. The Board issued final decisions in two covered business method (CBM) reviews against Uniloc Corporation Pty. Limited, the first AIA reviews against the NPE to reach final decisions since March 2016, and only the fourth to date. The PTAB also issued final decisions in IPRs against publicly traded Document Security Systems, Inc. as well as Acceleration Bay, LLC; Mobile Telecommunications Technologies, LLC; and Personalized Media Communications, LLC; among other NPEs.

At the beginning of summer, RPX noted, in reporting the roughly $4M jury verdict in favor of Realtime Data LLC against Riverbed Technologies, that Gerald Padian and Richard Tashjian, that NPE’s founders, had changed the name of another entity that they had formed in 2016 to Realtime Adaptive Streaming LLC (RAS). In March, Realtime Data assigned a family of seven data compression and storage patents to the RAS. Now, as the trial court considers post-trial motions and after two more patents have issued in the same family, RAS has filed suit. Last week, the NPE sued Amazon (6:17-cv-00549) over three of its patents, targeting the company’s video streaming services, including Amazon Video, as well as its tablets and “television peripherals”, including Amazon Fire, Kindle Fire, and Fire TV Stick.

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.

The Patent Trial and Appeal Board (PTAB) continued to see petitions for AIA review filed against prolific litigants in July, including a wave of petitions against Uniloc Corporation Pty. Limited across four separate campaigns, with petitions also brought against General Patent Corporation, Intellectual Ventures LLC (IV), Papst Licensing GmbH & Company Kg, and Quarterhill Inc. Meanwhile, throughout July, the Board instituted trial for inter partes reviews (IPRs) filed in semiconductor campaigns waged by Harvard University and the California Institute of Technology, with trial also instituted in campaigns related to network data compression (Realtime Data LLC), servers and data management (IV), and anti-malware technology (Finjan Holdings, Inc.). Final decisions issued by the Board in July included one that cancelled claims from a patent that has been asserted by Rothschild Connected Devices Innovations, LLC, an NPE controlled by inventor Leigh M. Rothschild, against more than 60 defendants.

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).

Since the US Supreme Court issued its decision in TC Heartland v. Kraft Foods Group Brands, RPX has seen an upswing in venue-related filings by both plaintiffs and defendants—with indications that some NPEs may be throwing in the towel on Texas, while others are seemingly digging in. Defendants have also begun to adapt their defensive strategies, asserting more comprehensive interpretations of the patent venue statute and proactively maintaining their right to bring venue challenges down the road.

Less than two weeks ago, a jury in the Eastern District of Texas awarded Realtime Data LLC $4.32M in damages for infringement by Riverbed Technology of one (8,643,513) of two patents taken to trial in that case. The jury found the asserted claims of the other patent (7,415,530) invalid for obviousness in light of certain prior art. The case was filed in May 2015 as part of Realtime Data’s sprawling campaign, which includes a second case against Riverbed, filed just this past April. In light of the TC Heartland decision, Riverbed Technologies has taken steps to litigate the two patents at issue there (8,717,204; 8,719,438) in the Northern District of California instead, filing a complaint seeking declaratory judgments of non-infringement. In the new complaint, Riverbed pleads that because it is not incorporated in Texas and does not have a “regular and established place of business” in the Eastern District of Texas, venue is not proper there. Meanwhile, Realtime Data faces reinvigorated venue challenges in other cases in its Texas campaign.

The Patent Trial and Appeal Board (PTAB) saw 54 petitions for AIA review brought against NPEs in May, up from 20 such petitions filed in April. May PTAB filings included a resurgence in petitions against publicly traded NPEs, including Acacia Research Corporation; Pendrell Corporation; Quest Patent Research Corporation; VoIP-Pal.com, Inc.; Xperi Corporation (f/k/a Tessera Holding Corporation); and Wi-LAN Inc. (WiLAN) (which was renamed to Quarterhill Inc. on June 1). A variety of private litigants were also hit by PTAB petitions in May, including Blackbird Tech LLC, Global Equity Management (SA) Pty. Ltd., General Patent Corporation, Realtime Data LLC, and Uniloc Corporation Pty. Limited.

As the data compression campaign of Realtime Data LLC, begun in 2008, passed its ninth-year anniversary in mid-April, the NPE saw two of its Texas cases, one against Fujitsu and Quantum (3:17-cv-02109) and the other against HPE and Silver Peak Systems (3:17-cv-02373) transferred to the Northern District of California. Also in April, Realtime Data filed another case (6:17-cv-00198) against Riverbed Technologies, asserting two patents, one (8,717,204) already at issue against many defendants in the campaign and another (8,719,438) that the new complaint appears to have added to the campaign for the first time. All of this activity comes as the NPE’s most advanced case back in Texas, an earlier suit filed against Riverbed Technologies, continues furiously toward a May 22, 2017 trial. One of three cases that Realtime Data has filed against Oracle was scheduled for trial on that same day; the deadline in the stay order to submit dismissal papers in that case passed on Friday.

The Patent Trial and Appeal Board (PTAB) continued to see the filing of petitions for inter partes review (IPR) against publicly traded NPEs in March 2017, including Acacia Research Corporation; Finjan Holdings, Inc.; Pendrell Corporation; TiVo Corporation (formerly known as Rovi Corporation); and Wi-LAN Inc. (WiLAN). A variety of prolific, privately held NPEs were also targeted for IPR throughout March, including Blackbird Tech LLC, General Patent Corporation, IP Edge LLC, Realtime Data LLC, and Papst Licensing GmbH & Company Kg, along with several inventors and inventor-controlled NPEs and an assortment of other plaintiffs.

After filing a third case against Oracle (6:17-cv-00046) in January of this year, and with two trials scheduled to begin on May 22, 2017, Realtime Data LLC has added nine more suits to a data compression campaign that now approaches its nine-year anniversary. The new defendants are Acronis (6:17-cv-00118), Array Networks (6:17-cv-00119), Barracuda Networks (6:17-cv-00120), Carbonite (6:17-cv-00121), Circadence (6:17-cv-00122), CommVault Systems (6:17-cv-00123), Exinda (6:17-cv-00124), Netgear (6:17-cv-00125), and Synacor (6:17-cv-00126). Throughout the campaign, Realtime Data has targeted certain servers and storage hardware; the NPE asserts four patents (7,415,530; 8,717,204; 9,054,728; 9,116,908) against eight of the nine new defendants, omitting infringement of the ‘204 patent from its complaint against Synacor and adding allegations of infringement of a fifth patent (7,358,867) against Circadence.

Realtime Data LLC has added a third Texas case against Oracle (6:17-cv-00046) to its data compression campaign, now in its ninth year of litigation, asserting eight patents (6,597,812; 6,748,457; 7,358,867; 7,376,772; 8,502,707; 8,643,513; 8,717,204; 9,054,728) against various products related to data storage and networking. Oracle systems and services using certain database compression technologies are at issue, with those utilizing the company’s Hybrid Columnar Compression technology alleged to infringe the ‘812, ‘867, ‘707, ‘513, ‘204, and ‘728 patents and those incorporating its Advanced Row Compression feature further accused of infringing the ‘867 patent. The ‘867 patent is also asserted against Oracle’s Essbase, a platform for business analytics, modeling, and forecasting. In addition, the complaint targets certain servers and storage hardware, with the Oracle SPARC Solaris alleged to infringe the ‘457 patent and the company’s ZFS Storage Appliance accused of infringing the ‘722 patent.