eDekka LLC v. E Revolution Ventures, Inc. CAFC

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.

On Wednesday, District Judge Rodney Gilstrap awarded a group of 24 defendants in eDekka LLC’s shopping cart campaign a total of $390K in attorney fees. After invalidating all 52 claims of eDekka’s sole patent-in-campaign (6,266,674) in September 2015, the judge declared last month that the NPE’s cases were exceptional under the Supreme Court’s ruling in Octane (see “Judge Gilstrap Awards Attorney Fees to eDekka Defendants”).

Judge Rodney Gilstrap has ruled that prolific NPE eDekka LLC must pay attorney fees to a group of online retailers in the NPE’s shopping cart campaign, a rarity in the generally plaintiff-friendly Eastern District of Texas. The judge’s December 17 order is especially remarkable given his usual reluctance to shift fees to prevailing parties, a reluctance that had persisted in spite of the Supreme Court’s ruling in Octane allowing fee awards in “exceptional” cases.

Following District Judge Rodney Gilstrap’s invalidation of eDekka LLC’s sole patent-in-campaign (6,266,674), the NPE is forging ahead with an appeal before the Federal Circuit (16-1120). Since initiating this campaign in 2013, eDekka has sued more than 250 defendants over the ‘674 patent, accusing a wide variety of companies of infringing the patent through their websites’ online shopping cart features. According to RPX’s 2014 NPE Litigation Report, eDekka filed 127 new cases last year alone (second only to Acacia Research Corporation in the number of new cases filed in 2014). Nearly ninety of those cases were filed on April 23, 2014, causing some to speculate that the NPE was concerned about patent legislation that, if passed, would have taken effect the next day.