Intellectual Ventures II LLC v. Kemper Corporation et al DC

Intellectual Ventures LLC (IV), via plaintiff Intellectual Ventures II LLC (IV II), has filed another case against HP Enterprise (HPE) (6:21-cv-01298), again in the Western District of Texas—even though HPE has repeatedly moved (with some apparent success) for convenience transfers elsewhere. A single patent generally related to “hosting computing clusters” is asserted in the new complaint, with IV targeting certain HPE cloud computing services, together with related hardware and software. The new case is the third that IV filed against HPE in 2021.

Roughly one week ago, District Judge Patti B. Saris in Massachusetts granted three motions for summary judgment of noninfringement, brought by Dell (EMC), Lenovo, and NetApp. The ruling ended the claims as to the lone remaining patent in a case brought by Intellectual Ventures LLC (through subsidiaries Intellectual Ventures I LLC and Intellectual Ventures II LLC) (IV) in May 2016. A July 2019 suit in the same campaign remains active against Dell’s VMWare, and IV has now added to the campaign’s sprawl by accusing Arista Networks (6:20-cv-00749) of infringing three patents new to the litigation. IV targets Arista’s provision of its Extensible Operating System (EOS) and Containerized Extensible Operating System (cEOS), as well as certain routers and switches.

The Federal Circuit’s February 2018 opinions in Berkheimer and Aatrix have caused a significant shift in the way that district courts approach Section 101. By holding that factual disputes over a patent’s inventiveness may preclude early dismissal under Alice, those decisions have since caused grant rates for patent eligibility challenges to drop by more than 20%, as detailed in a recent RPX report. Berkheimer’s elevation of subsidiary factual questions in the Section 101 analysis—historically viewed as primarily a question of law—has also raised questions about the factfinding role juries will play in the adjudication of Alice challenges not resolved until trial. Now, an eligibility dispute just resolved by District Judge Rodney Gilstrap confirms that courts may be willing to entrust juries with 101-related factual issues after all. On September 12, shortly after denying summary judgment under Alice due to a factual dispute under Berkheimer, Judge Gilstrap put that dispute before a jury, which found that the challenged claims were “well-understood, routine, and conventional”, as argued by defendant Jack Henry. The following day, Judge Gilstrap issued a final judgment against plaintiff PPS Data LLC in which he invalidated the claims under Alice in light of that verdict.

While Intellectual Ventures LLC (IV) has been divesting parts of its extensive patent portfolio (see here), it has also continued to litigate some of those patents. The NPE filed a new case just this past week accusing Dell (VMware) (6:19-cv-00449) of infringing five patents—four of them reissues and new to litigation—through the provision of various cloud-based computing, virtualization, and storage products. The campaign in which this case falls—now involving over two dozen defendants, over two dozen patents, over five dozen petitions for inter partes review (IPR), and close to three dozen appeals—began by targeting financial institutions and insurance company customers of their products but switched in 2016 to focus on providers of server and storage technology, with cases remaining open against Lenovo and Dell (EMC), as well as NetApp, now consolidated before District Judge Patti B. Saris in Massachusetts. In early June, Judge Saris granted a motion for reconsideration of a prior order declining to clean up the staggered schedule in that case by simply writing in hand, on the parties’ joint brief, “I accept the alternate proposal. This case is old.”

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.

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.

The Patent Trial and Appeal Board (PTAB) saw petitions for AIA review filed against a variety of prolific litigants in June 2017, including General Patent Corporation, Intellectual Ventures LLC (IV), Quarterhill Inc. (f/k/a Wi-LAN Inc.), Realtime Data LLC, Uniloc Corporation Pty. Limited, and Xperi Corporation (f/k/a Tessera Holding Corporation). Also in June, the PTAB instituted trial for petitions brought against patents asserted in a variety of sprawling campaigns, including some waged by Acacia Research Corporation, IV, Papst Licensing, Quarterhill, and VirnetX Inc. The Board further issued final decisions throughout June in AIA reviews against patents involved in several notable campaigns, including some waged by Document Security Systems, Inc., Elm 3DS Innovations LLC, Empire IP LLC, and Quarterhill.