Encoditech LLC v. Cynergy Data, LLC

For several years running, IP Edge LLC has been responsible for the most defendants added to NPE litigation campaigns throughout each calendar year. 2019 was no different. Last year saw roughly 400 defendants added to campaigns launched by plaintiffs associated with the Texas monetization firm, the campaigns spanning a wide range of technologies and now involving suits filed (and typically litigated in file-and-settle fashion) in myriad districts. A quick glance at the NPE’s January filings suggests that 2020 will see more of the same, while a recent Alice ruling may have just ended one of IP Edge’s 2019 campaigns.

In a new District of Delaware suit, Ortiz & Associates Consulting, LLC (OAC) has accused Panasonic (1:19-cv-01921) of infringing a single “multimedia” mobile device patent from a family of 30-plus members, targeting the mirroring features of the company’s Viera-series televisions. OAC asserted the same patent, together with others from the same family, in an August 2018 case in the same district against Roku, which responded with a quick motion to dismiss under Alice. Delaware District Judge Maryellen Noreika teed that motion up for argument on June 14, 2019—just five days short of the five-year anniversary of the Alice decision itself—in an omnibus hearing that addressed five Section 101 motions filed in cases before her, the others filed by OpenPrint LLC, Sandboxed Software, LLC (d/b/a Sandbox Software, LLC), TrackTime LLC, and EncodiTech LLC. Judge Noreika’s treatment of these motions on a “Section 101 Day” tracks the procedure already used in Delaware a couple of times this year by District Judge Leonard P. Stark. OAC is now suing Panasonic, begging the question: how did that Roku motion fare? More broadly, four months later, how did Judge Noreika’s “Alice day” affect the progress of those other NPE campaigns?

EncodiTech LLC, an affiliate of monetization firm IP Edge LLC, has filed its first cases in roughly one year, asserting the same patent (6,321,095) previously in suit, this time against Fossil (6:17-cv-00354), Harman (6:17-cv-00749), Plantronics (6:17-cv-00750), REI (6:17-cv-00358), and TCL (TTE Technology) (6:17-cv-00751). The ‘095 patent generally concerns secure peer-to-peer communications; EncodiTech has shifted the focus of its campaign from ATMs and payment terminals early on, to more general payment security technologies in 2016, and now smartwatches and Bluetooth-enabled headphones that communicate with other devices.

On November 30, the day before amendments to the Federal Civil Rules of Procedure took effect, EncodiTech LLC nearly tripled the size of its first and only litigation campaign, filing 20 new suits against Airbnb, American Express, Best Buy, Capital One, Domino’s, Etsy, Eventbrite, Expedia, Groupon, LinkedIn, and others. The campaign, which EncodiTech launched in June of this year, involves a single patent that generally relates to secure peer-to-peer communication between devices (6,321,095). EncodiTech’s recent complaints do not identify any specific accused products, only “products and services embodying the encryption technologies claimed in the ‘095 patent”. In earlier cases, such as those against active defendants Ingenico (2:15-cv-01088), National Cash Systems (2:15-cv-01091), and NCR Corporation (2:15-cv-01092), the NPE focused its infringement allegations on ATMs and electronic payment terminals.