eDekka LLC v. Tory Burch LLC

The Federal Circuit has upheld an attorney fee award against patent monetization firm Blackbird Tech LLC (d/b/a Blackbird Technologies), affirming a Central District of California decision that the NPE’s case against two providers of exercise equipment was exceptional under the Supreme Court’s holding in Octane. In particular, the Federal Circuit agreed with the district court that Blackbird’s conduct justified a fee award under both independent prongs of Octane, by pursuing “meritless” and “frivolous” claims against the defendants and for litigating in an unreasonable manner. Now, the defendants have asked the Federal Circuit for fees incurred at the appellate stage, citing its ruling that Blackbird’s conduct had “severely affected every stage of the litigation”. The rulings against Blackbird echo a prior series of Octane decisions against IP Edge LLC, another monetization firm known for its similar file-and-settle strategy.

As RPX’s recently published Patent Litigation and Marketplace Report notes, IP Edge LLC landed at the top of the list of most frequent filers for 2018, a spot familiar to the Texas monetization firm from previous years (see here and here). Its affiliates added nearly 200 defendants to campaigns over the course of last year, and, as RPX noted last week, the firm recently acquired a portfolio of US patents from Huawei, which the week in between has already seen translated into four new litigation campaigns (see, e.g., here, here, here, and here). The former Huawei patents join portfolios acquired directly from Panasonic (in October 2017) and Siemens (in October 2018), which the monetization firm has been asserting in multiple litigation campaigns since. This burst of activity over patents acquired in bundles from operating companies comes as IP Edge has weathered a second Alice-Octane storm that ended one of its affiliate’s litigation campaigns, this time hitting in Delaware rather than in Texas.

Last week, eDekka filed suits against 87 online retailers including 1-800 Flowers, AT&T, Barnes & Noble, Big Fish Games, Brown Shoe Company, Dick’s Sporting Goods, Dillard’s, Disney, eBags, Etsy, Foot Locker, Gilt Groupe, J.Crew, PC Connection, REI, Saks Direct, Shoebuy.com, VistaPrint, Wayfair, and Zale Corp. eDekka’s complaints accuse defendants’ online shopping cart features of infringing a patent related to receiving and storing user input (6,266,674).  The ‘674 patent has been asserted against more than 100 companies since eDekka’s campaign started in November 2013. The patent-in-suit was assigned to eDekka in September 2013, less than a week after the entity was formed in Texas. eDekka began filing suits shortly thereafter. 4/23, Texas Eastern District Court, 2:14cv00398, 2:14cv00400, 2:14cv00402, 2:14cv00403, 2:14cv00404, 2:14cv00405, 2:14cv00406, 2:14cv00407, 2:14cv00408, 2:14cv00409, 2:14cv00410, 2:14cv00411, 2:14cv00412, 2:14cv00413, 2:14cv00414, 2:14cv00415, 2:14cv00416, 2:14cv00417, 2:14cv00418, 2:14cv00419 , 2:14cv00420 , 2:14cv00421, 2:14cv00422, 2:14cv00423, 2:14cv00424, 2:14cv00425,
2:14cv00426 , 2:14cv00427, 2:14cv00427, 2:14cv00428 , 2:14cv00430, 2:14cv00431, 2:14cv0043, 2:14cv00434, 2:14cv00435 , 2:14cv00436, 2:14cv00438, 2:14cv00439, 2:14cv00440, 2:14cv00441, 2:14cv00443, 2:14cv00444, 2:14cv00445, 2:14cv00447, 2:14cv00448, 2:14cv00449 , 2:14cv00450 , 2:14cv00452, 2:14cv00453, 2:14cv00454, 2:14cv00456, 2:14cv00460, 2:14cv00460 , 2:14cv00461, 2:14cv00462, 2:14cv00464, 2:14cv00466, 2:14cv00467, 2:14cv00468 , 2:14cv00470, 2:14cv00472, 2:14cv00473, 2:14cv00475, 2:14cv00476, 2:14cv00478, 2:14cv00480, 2:14cv00481, 2:14cv00482, 2:14cv00485, 2:14cv00486, 2:14cv00487, 2:14cv00490, 2:14cv00491, 2:14cv00492, 2:14cv00494, 2:14cv00496, 2:14cv00498, 2:14cv00499, 2:14cv00500, 2:14cv00502, 2:14cv00503, 2:14cv00504, 2:14cv00505, 2:14cv00506, 2:14cv00507, 2:14cv00508, 2:14cv00509