AGIS Software Development LLC v. Apple, Inc. CAFC

Last week, District Judge Rodney Gilstrap stayed a set of Eastern District of Texas cases filed in November 2019 by AGIS Software Development LLC against Alphabet (Google, Waze Mobile) and Samsung. The court did so even though the stay “comes late in the progression of this case—with discovery complete, pretrial briefing submitted, and jury selection pending”. Judge Gilstrap ruled that because all the asserted claims of the six patents-in-suit, generally related to mobile messaging, are now subject to granted ex parte reexaminations, the prejudice to the plaintiff inherent in any delay, the maturity of the litigation notwithstanding, “is outweighed by the benefit of such parallel review”. Notably, Google and Samsung filed the requests for ex parte reexam of the last two patents only after the Patent Trial and Appeal Board (PTAB) exercised discretion under “the NHK-Fintiv rule” to deny institution of inter partes review (IPR)—based on petitions asserting the exact same grounds.

As the last of the suits in its June 2017 wave ends, AGIS Software Development LLC has filed another, accusing Alphabet (Google, Waze Mobile) (2:19-cv-00361, 2:19-cv-00359) and Samsung (2:19-cv-00362) of infringing various members of a family of patents generally related to messaging on mobile devices. The plaintiff appears as committed as ever to litigating in Texas, where it was formed in June 2017, again filing in the Eastern District there. AGIS Software immediately dismissed its first-wave suit against ZTE in the Eastern District of Texas after District Judge Rodney Gilstrap ordered the case transferred to the Northern District of California for improper venue in Texas.

Throughout May 2018, the Patent Trial and Appeal Board (PTAB) saw activity in multiple long-running campaigns, including challenges brought against patents and plaintiffs with colorful and tangled litigation histories. The Board saw petitions for AIA review brought in May against Publishing Technologies LLC, an NPE controlled by patent attorney and frequent litigant Bradley D. Liddle; in the mobile devices campaign waged by AGIS Software Development LLC; and in the networking campaign brought by XR Communications, LLC. Also in May, the Board instituted trial for inter partes reviews (IPRs) against Iridescent Networks, Inc. and Oyster Optics, LLC. Final decisions issued in May include three against prolific plaintiff Realtime Data LLC, which saw claims cancelled from one of its data compression patents while another two survived unscathed, as well as final decisions cancelling claims from patents held by General Patent Corporation and VirnetX Holding Corporation.