Western District of Texas Judge Alan D. Albright has replaced an August 29, 2022 order with a September 9, 2022 order, announcing in each that “speculation and incomplete discovery often plagues early transfer motions”. The court explained that its current general case schedule, modified in response to feedback from the Federal Circuit, opens venue discovery automatically upon the filing of a motion to transfer, with claim construction hearings (typically scheduled early) often delayed to comply with the mandate that transfer consideration should precede any turn to substantive issues in the case (like claim construction). Per Judge Albright, “[p]arties then began abusing this process”, “strategically wait[ing] to file their transfer motions to delay the case”. Comparing defendants’ conduct during venue discovery, Judge Albright then handed down a new scheduling framework for the XR Communications, LLC (d/b/a Vivato Technologies) case before him, one that places venue consideration after the close of general fact discovery but still before Markman.
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After filing more than a dozen new cases in mid-June, XR Communications, LLC (d/b/a Vivato Technologies) was not done. Since then, the plaintiff has added suits against Dell (6:21-cv-00646), HP (6:21-cv-00694), and Microsoft (6:21-cv-00695) to those filed earlier against Alphabet (Google), Amazon (eero), Apple, ASUSTek, Cisco, Comcast, CommScope (ARRIS Solutions, Ruckus Wireless), D-Link, Hon Hai Precision Industry (Belkin), HP Enterprise (HPE) (Aruba Networks), NETGEAR, Samsung, and Ubiquiti Networks. The latest complaints focus on one of the now seven patents-in-campaign, alleging infringement through the provision of Wi-Fi-enabled laptops, tablets and two-in-ones, and desktops that support MIMO and/or MU-MIMO technologies.
XR Communications, LLC (d/b/a Vivato Technologies) has filed more than a dozen new cases, one each against Alphabet (Google), Amazon (eero), Apple, ASUSTek, Cisco, Comcast, CommScope (ARRIS Solutions), and Samsung in the Western District of Texas; against D-Link, Hon Hai Precision Industry (Belkin), HP Enterprise (HPE) (Aruba Networks), NETGEAR, and Ubiquiti Networks in the Central District of California; and against CommScope (Ruckus Wireless) in the Northern District of California. XR Communications targets various wireless networking capabilities of certain defendant devices—including access points, controllers, routers, and streaming devices—with overlapping subsets of four patents. The new wave arrives as the prior, 2017 wave of litigation from the same plaintiff comes back to life at the conclusion of a set of inter partes reviews (IPRs) of three patents asserted previously.