Cypress Lake Software, Inc. v. BlackBerry Corporation

Grus Tech LLC has launched its first litigation campaign, suing LG Electronics (LGE) (4:20-cv-00192) and Samsung (4:20-cv-00190) in the Eastern District of Texas on the same day that Vulpecula, LLC has hit those two defendants (4:20-cv-00191 and 4:20-cv-00189, respectively) in the same district. Each plaintiff asserts patent(s) naming Robert Paul Morris as the sole inventor, with infringement allegations targeting certain of the defendants’ smartphones. These plaintiffs—two of five Texas entities, formed under similar circumstances roughly one month ago, to initiate litigation this past week—are part of a constellation of entities litigating Morris patents.

Late last month, District Judge Jeremy D. Kernodle of the Eastern District of Texas granted a sealed motion, brought by defendants Dell and Samsung, to compel NPE-plaintiff Cypress Lake Software, Inc. to produce a set of communications that it had logged as attorney-client privileged and/or protected as attorney work product prepared in anticipation of litigation. Cypress had sought to prevent production of its communications with Robert Paul Morris, the inventor named on the patents that the NPE has been asserting in litigation since 2015; Sitting Man, LLC, a Delaware entity under Morris’s control; and Mirai Ventures, LLC, a Texas entity that, according to the court’s order, entered into an October 30, 2015 “Financial Backer(s) Agreement . . . whereby Mirai agreed to provide funding and patent-prosecution services to Sitting Man in exchange for a portion of any proceeds from the enforcement, sale, or licensing of the patents”. Judge Kernodle’s order comes as the Texas court has been pelted with filings over multiple issues, as a separate portion of the campaign—against HP and ZTE—may also be ramping up in the Northern District of California after a transfer there, and as Cypress has filed a fourth case against Samsung (6:19-cv-00328) in the Eastern District of Texas, this time targeting the Korean parent entity itself.

Cypress Lake Software, Inc.’s litigation targeting “devices that come with, or can be upgraded to, Google’s Android operating system, version 7.0 or greater” continues, with the NPE filing a separate action against Dell (6:18-cv-00138) focused on such devices. The new complaint follows the dismissal of an earlier case against Dell, accusing the company of infringement through the provision of computing devices running Microsoft’s Windows 10. Cypress Lake represents that it had served infringement contentions in that first Dell case that focused on both sets of accused products, prompting Dell to object to inclusion of the Android-based devices. After Cypress settled with Microsoft in August 2017, the NPE continued its campaign, suing BlackBerry, HP, LG Electronics (LGE), and Samsung, over such devices.

Cypress Lake Software, Inc. has filed suit against Samsung (6:18-cv-00016) for a third time, accusing the tech giant of infringing 13 patents through the manufacture and sale of smartphones, tablets, and laptops “that come installed with, or can be upgraded to, Google’s Android or Chrome operating systems”. Filed in November 2015 as part of a wave of filings in advance of the take-effect date for certain changes to the Federal Rules of Civil Procedure, Cypress Lake’s first case against Samsung was dismissed without prejudice in March 2016. The second, October 2016 suit focused infringement allegations on desktop and tablet computers running Microsoft’s Windows 10; it was dismissed with prejudice in August 2017, apparently as a consequence of a wider resolution between Cypress Lake and Microsoft. The NPE pleads that the six patents now asserted, which were previously asserted against Samsung, cannot be challenged by the defendant in an inter partes review (IPR), as more than one year has passed since that earlier suit.

Last year, Cypress Lake Software, Inc. fired off a barrage of Eastern District of Texas lawsuits against companies making and selling desktop and tablet computers running Microsoft’s Windows 10: Acer, ASUS, Dell, HP, LG Electronics (LGE), Panasonic, Samsung, and Toshiba. A venue fight ensued, with the defendants moving to transfer the suits to the Western District of Washington because of the purported centrality of Microsoft in resolving those disputes. In May 2017, in the middle of that fight, Cypress Lake added a case against ZTE that further alleged infringement of some of the patents already asserted in those earlier cases through the provision of devices that use version 4.4.2 of Google’s Android operating system, arguing in opposition to the transfer motions that Google, a California company, would also be key to the litigation. Also in May, Microsoft filed petitions for inter partes review of three Cypress Lake patents, each of which was terminated in light of settlement in August, a few weeks after submission of a joint status report informing the district court that Cypress Lake had “executed an agreement with a non-party” triggering dismissal of the Texas cases after all. Since then, Cypress Lake has added three new cases to the campaign, one each against prior defendants HP (6:17-cv-00462) and LGE (1:17-cv-01133) and one against new defendant BlackBerry (6:17-cv-00692), all of them targeting “devices that come with, or can be upgraded to, Google’s Android operating system, version 7.0 or greater”.

A venue fight in the sole litigation campaign of Cypress Lake Software, Inc. has taken a turn, as Dell has moved to withdraw its motion to transfer venue for convenience in favor of a future motion to dismiss for improper venue now that the TC Heartland decision has issued. Many of the defendants in the campaign had moved to transfer the cases against them to the Western District of Washington, where Microsoft is based, given the central role, so they allege, that Microsoft personnel and documentation would likely play in the litigation even though Microsoft is not itself named as a defendant. In light of TC Heartland, though, Dell asked to withdraw the earlier motion, intending to “file instead a motion to dismiss for improper venue (or to transfer in the alternative) under 28 U.S.C. § 1406(a)”. In its convenience motion, Dell pled that it is a Delaware corporation headquartered in Round Rock (in Texas but outside the Eastern District) that “has no locations, operations, employees, or documents related to computer or tablet products, including the accused products, in this district”.

In the middle of a fight over venue in a round of suits that it filed last fall, Cypress Lake Software, Inc. has added two more to its campaign, one each against Fujitsu (6:17-cv-00299) and ZTE (6:17-cv-00300). The complaint against Fujitsu largely tracks those in the 2016 suits against Acer, ASUS, Dell, HP, LG Electronics (LGE), Panasonic, Samsung, and Toshiba, asserting six patents in two families (8,661,361; 9,423,923; 9,423,938; and 9,423,954 in the first and 8,781,299 and 8,983,264 in the second) against the defendants for the manufacture and sale of computers and tablets running Microsoft’s Windows 10. Infringement allegations in those complaints focus on the use of Miracast (a standard allowing wireless display to a second device) and Snap Assist (a mechanism for resizing windows). The complaint against ZTE, however, alleges infringement of only the ‘299 and ‘264 patents through the provision of devices that use version 4.4.2 of Google’s Android operating system. That shift is no surprise after a review of the briefing related to the existing defendants’ motions to change venue.

Cypress Lake Software, Inc. has rebooted its sole litigation campaign, initiated on November 30, 2015, which petered out in March 2016 with a set of dismissals without prejudice to refiling. The new complaints add one defendant, Panasonic (6:16-cv-01251), to the seven that the NPE is now suing for the second time: Acer (6:16-cv-01246), ASUS (6:16-cv-01247), Dell (6:16-cv-01245), HP (6:16-cv-01249), LG Electronics (LGE) (6:16-cv-01250), Samsung (6:16-cv-01252), and Toshiba (6:16-cv-01254). Each defendant is accused of infringement through the manufacture and sale of computers and tablets running Microsoft Windows 10, which Cypress Lake alleges contain two infringing features: Miracast (a standard allowing wireless display to a second device) and Snap Assist (a mechanism for resizing windows). Four patents from one family (8,661,361; 9,423,923; 9,423,938; 9,423,954) and two patents from another (8,781,299; 8,983,264) are asserted against each defendant except LGE (against which all but the ‘269 patent are asserted). Microsoft itself is not named as a defendant.