Packet Intelligence LLC v. NetScout Systems, Inc. et al CAFC

In May 2019, Palo Alto Networks filed a suit in the Northern District of California seeking declaratory judgments that it does not infringe five network traffic monitoring and packet processing patents held by Packet Intelligence LLC. July saw Packet Intelligence answer that complaint and file affirmative counterclaims, and now the NPE has sued Juniper Networks (3:19-cv-04741) in the same forum, alleging infringement of the same five patents, which were each also targeted with a July 2019 petition for inter partes review (IPR) by campaign defendant Nokia. Meanwhile, NetScout Systems has filed its opening brief in support of its Federal Circuit appeal from a jury verdict and final judgment in the Eastern District of Texas.

Late in 2017, Packet Intelligence LLC tried its overlapping claims of patent infringement against NetScout Systems (in October) and Sandvine (in November) to separate Eastern District of Texas juries, with contrasting results. The first jury found NetScout Systems to have willfully infringed multiple claims, also found not invalid, awarding Packet Intelligence $5.75M in damages, while the second jury found in Sandvine’s favor on infringement, awarding the NPE nothing. Neither case appears to have reached final resolution, with District Judge Rodney Gilstrap having ruled on some, but still in receipt of multiple other, post-trial motions. Meanwhile, Packet Intelligence has filed new lawsuits—asserting patents from the same network traffic monitoring and packet processing family—against Ericsson (2:18-cv-00381) and Nokia (2:18-cv-00382) in the same forum.

The Patent Trial and Appeal Board (PTAB) remained at the center of a heated public debate over the issue of tribal sovereign immunity in December 2017. Motions to dismiss filed by the Saint Regis Mohawk Tribe in IPRs against several Allergan patents—acquired by the tribe and licensed back to their original owner to shield them through sovereign immunity—remain pending as the PTAB considers a wave of amicus briefs filed on both sides of the issue. The Board has since denied the tribe’s motion for an oral hearing on discovery related to alleged bias held by the USPTO and its leadership, and that bias’s effect on the selection of judges for the tribe’s case. Meanwhile, among the petitions for inter partes review (IPR) filed in December was one brought by Apple against MEC Resources, LLC, an entity owned by another Native American tribe, which took over an existing lawsuit asserting the challenged patent against Apple in the fall. Also in December, the Board issued institution decisions in petitions against Iridescent Networks, Inc.; Lone Star Silicon Innovations LLC; and publicly traded Quarterhill Inc.; while an IPR against Packet Intelligence LLC ended in an adverse judgment after petitioner Sandvine prevailed in a November trial.

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 saw the filing of petitions against a host of publicly traded NPEs in February, including Acacia Research Corporation, Pendrell Corporation, Wi-LAN Inc. (WiLAN), and Xperi Corporation (f/k/a Tessera Holding Corporation), with challenges also filed in campaigns waged by Intellectual Ventures LLC (IV); IP Bridge, Inc.; Uniloc Corporation Pty. Limited; and Monument Patent Holdings, LLC.

One month after rebooting its sole litigation campaign with a new suit against Canadian networking company Sandvine (2:16-cv-00147), Packet Intelligence LLC has added another. The new complaint, filed against NetScout Systems and its apparent subsidiary Tektronix (2:16-cv-00230), asserts the same five patents (6,651,099; 6,665,725; 6,771,646; 6,839,751; 6,954,789), which generally relate to network traffic monitoring and packet processing. NetScout and Tektronix are accused of infringement through provision of its GeoProbe systems, which monitor and optimize the performance of software applications and underlying networks. Past defendants in the campaign include Cisco and Huawei.