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Each week, RPX publishes the latest news on patent litigation and market trends. Never miss a headline. Get them delivered right to your inbox.
January 19, 2019
Networking, New Patent Litigation
Last week Dropbox (1:19-cv-00048) joined Amazon and F5 Networks as 2019 defendants in the US leg of the litigation campaign of Data Scape Limited, an entity formed in Ireland in January 2017. Late that year, the NPE appears to have kicked things off in Germany, as publicly available litigation records indicate that a hearing was held in October 2017 in Germany’s Munich Regional Court for a lawsuit filed by the NPE against Riverbed Technology and another, anonymous defendant, with a March 2018 hearing held in a second case against Riverbed in that same district. In December 2018, Data Scape sued Apple, Citrix, Pandora, Spotify, and Western Digital in the Central District of California, as well as Dell, Fujitsu, and SAP in the Eastern District of Texas, asserting subsets of patents acquired through a March 2017 assignment from Sony.
Power-over-Ethernet Campaign Snags Polycom and USA Vision Systems Amid Various Federal Circuit Appeals
January 19, 2019
Networking, New Patent Litigation
Recent setbacks before the PTAB have not dissuaded ChriMar Systems, Inc. and ChriMar Holding Company, LLC (collectively, “ChriMar”) from continuing to file new lawsuits. Last week, the affiliated NPEs sued Polycom (6:19-cv-00015) in the Western District of Texas and USA Vision Systems (3:19-cv-00114) in the Northern District of Texas. Among the four patents asserted across these new complaints (all four against USA Vision; two, against Polycom) are three patents that were successfully challenged in inter partes reviews (IPRs), the invalidations arising from which have been appealed to the Federal Circuit. As it has throughout this campaign, ChriMar accuses the defendants of infringement through the provision of “Power over Ethernet powered devices and/or power sourcing equipment”, both complaints targeting “powered devices” (IP phones for Polycom and IP cameras for USA Vision Systems) but only the USA Vision Systems complaint targeting “power sourcing equipment” (“switches, midspans/injectors, and network video recorders”).
January 12, 2019
Media Content and Distribution, New Patent Litigation
The campaign that Data Scape Limited kicked off late last year has seen its first defendants added in 2019 after the NPE sued Amazon (1:19-cv-00056) and F5 Networks (1:19-cv-00064), both in the District of Colorado. Its new infringement allegations are in line with those in prior complaints, with Data Scape targeting products and services that synchronize data across multiple devices, including “Amazon Kindle, Amazon Photo, Amazon Drive, Amazon Prime Music, Amazon Music Unlimited, [and] Amazon devices on which they operate (e.g., Fire, Echo, Kindle, Amazon servers, etc.)” and F5’s BIG-IP software and hardware, respectively. The NPE asserts in each complaint overlapping subsets of patents from a portfolio comprising two families, both broadly pertaining to storing and syncing data files in a distributed computing environment and both received through a March 2017 assignment from Sony.
January 11, 2019
Patent Market, Patent Watch
The Electronic Frontier Foundation (EFF) has asked District Judge William H. Alsup for permission to jump into the standing fight between Apple and subsidiaries of NPE Uniloc Corporation Pty. Limited. Last year, Apple moved to dismiss multiple cases filed against it, arguing that after a May 2018 deal between Uniloc and Fortress Investment Group LLC, the plaintiffs lack standing to assert the patents-in-suit. The EFF, a self-described “donor-funded, non-profit civil liberties organization” with “more than 39,000 active members”, has now moved to intervene in those cases (3:18-cv-00360, 3:18-cv-00363, 3:18-cv-00572, 3:18-cv-00365) for a limited purpose: to oppose motions to file under seal the agreements that apparently apportion rights in the large portfolio of patents that Uniloc transferred to Fortress last May, as well as large parts of the parties’ briefs arguing about the legal consequences flowing from those agreements. EFF contends that those briefs’ heavy redactions, supported only by “rote justifications” in declarations filed by counsel for Uniloc, rob the public of its common law and First Amendment rights of access.
January 11, 2019
E-Commerce and Software, Patent Litigation Feature
After the US Supreme Court’s 2014 Alice decision, defendants jumped at the chance to challenge the eligibility of a patent under Section 101 early in litigation. Such motions remained routine, subsequent narrowing caselaw notwithstanding, until February 2018. That month, the Federal Circuit held—in Berkheimer v. HP—that summary judgment of patent ineligibility is premature where a party raises questions of fact as to whether the patent’s claims contain the required inventive concept. The Federal Circuit’s decision in Berkheimer, and its companion ruling in Aatrix Software v. Green Shades Software (holding that such factual disputes could also preclude resolution of 101 challenges at the Rule 12 stage), have raised questions about whether patent eligibility will ultimately become an issue not properly raised until much closer to trial, or even later. That question may soon come before the Supreme Court, which on January 7 requested the views of US Solicitor General Noel Francisco as to the certiorari petition filed by HP last September in the Berkheimer case.
Two Defendants Join Akoloutheo’s Network Management Campaign, as Another Seeks a More Definite Statement
January 11, 2019
E-Commerce and Software, Networking, New Patent Litigation
Akoloutheo, LLC has added two more cases to its network management campaign, suing Mitel Networks (4:19-cv-00021) and Palo Alto Networks (4:19-cv-00014), both in the Eastern District of Texas. The sole patent asserted generally concerns “controlling any type of transaction between providers and consumers of information services”. In the Mitel complaint, Akoloutheo identifies “Mitel Software” (as covering “Mitel’s Teamwork, MiCollab, MiTeam, OfficeLink, MiCloud, MiContact, MiVoice and Phone Manager software systems”), “Mitel Network Devices” (as including “Mitel’s Sky, MiCloud, Clearspan, Collaboration Service, StreamLine, and MiVoice Appliances, Consoles, Controllers, Devices, Gateways, Routers and Switches”), and “Network Resources” (as “components that are communicably coupled to, and provide access to, a plurality of networked data, communication, information and application resources”) before collectively defining all of them as a “Mitel System” that the NPE identifies as the “infringing instrumentalities”. Faced with analogous definitions and identifications, prior defendant Blackrock (Netscout Systems) has, in lieu of answering the complaint filed against it, moved under Rule 12 for a more definite statement concerning the products specifically accused of infringement in that case, characterizing Akoloutheo has having attempted to meet its pleading obligations “through length, rather than clarity”.
Apple Seeks Rehearing from a Third PTAB Panel After Partial Grant of Sanctions over Improper Ex Parte Communications
January 10, 2019
Networking, Patent Litigation Feature
Apple has filed—with a third panel assigned to the proceeding—a request for rehearing of its inter partes review (IPR) of two patents held and asserted by publicly traded VoIP-Pal.com, Inc. The original panel was replaced midstream after Dr. Thomas E. Sawyer, VoIP-Pal’s former CEO and chairman, sent the first of a series of letters to the Patent Trial and Appeal Board (PTAB) (also copying various other government officials), letters that the Board now agrees were improper ex parte communications. The replacement panel issued final written decisions sustaining all of the claims that Apple had challenged. Apple then learned about all six, improperly sent letters and asked for permission to file a motion seeking sanctions against VoIP-Pal. That permission was granted. Apple sought entry of judgment in its favor or, in the alternative, vacatur of those final written decisions. Just before Christmas, the third panel—comprising the Board’s Acting Chief Administrate Patent Judge (APJ), its Acting Deputy Chief APJ, and its Vice Chief APJ—agreed that VoIP-Pal’s communications violated Board rules but stopped short in its sanctions, leaving Apple to file with that third panel its current request for rehearing of the replacement panel’s final written decisions.
January 7, 2019
Patent Market, Patent Watch
Quarterhill Inc. closed 2018 with multiple new licenses, including with OmniVision (for patents acquired from Panasonic) and Powerchip (covering patents acquired from Infineon). Meanwhile, various Quarterhill subsidiaries continue litigating patents received from Infineon, OKI, or Panasonic, with recently released USPTO records suggesting that more litigation is coming. One thing is certain, however: Quarterhill’s earnings, which its executives have referred to as “lumpy”, just got lumpier. On Thursday, a judge slashed the company’s Q3 trial win against Apple from $145.1M to just $10M.
InterDigital Sued by Semiconductor Firm in California over FRAND Licensing Misconduct as NPE’s SEP Dispute with Huawei Escalates in China
January 6, 2019
Mobile Communications and Devices, Patent Litigation Feature
Publicly traded InterDigital, Inc. has been hit with an international salvo of complaints over the NPE’s alleged breach of its fair, reasonable, and non-discriminatory (FRAND) licensing obligations as to certain standard essential patents (SEPs) covering cellular technologies. In California, Swiss semiconductor firm u-blox has sued InterDigital for allegedly insisting on unfair and discriminatory licensing terms for certain 2G, 3G, and 4G patents while using abusive tactics to force it to take a license, including inappropriate communications with its customers and downstream manufacturers. The plaintiff has asked the court to determine a FRAND licensing rate, enjoin InterDigital from making further contact with its clients, and to issue a declaration of noninfringement for certain wireless communications products, including cellular modules implementing the LTE standard. Meanwhile, InterDigital disclosed on January 7 that it was just sued in China by Huawei, which has alleged that the NPE has violated its FRAND obligations as to certain patents related to 3G, 4G, and 5G standards. Huawei has purportedly asked the court to determine the proper licensing rate for certain wireless products following the expiration of a license at the end of 2018.
January 5, 2019
Consumer Electronics and PCs, Mobile Communications and Devices, Networking, New Patent Litigation
December saw continued litigation over patents from a portfolio that Uniloc Corporation Pty. Limited acquired from Pendrell Corporation in January 2018. Having taken ownership of seemingly all of Uniloc’s patents in May, including the former Pendrell patents, Fortress Investment Group LLC (through subsidiary Uniloc 2017 LLC) is the plaintiff asserting them now. Alphabet (Google) was the NPE’s principal target in December, with seven new Eastern District of Texas suits filed against the tech giant, but Fortress also sued Microsoft (8:18-cv-02224), Netflix (8:18-cv-02150), Roku (1:18-cv-01126), and Verizon (2:18-cv-00536) last month.