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The Federal Circuit has ruled that the appointment of Patent Trial and Appeal Board (PTAB) administrative patent judges (APJs) by the Secretary of Commerce violates the US Constitution’s Appointments Clause. In an October 31 opinion, the appeals court held in Arthrex v. Smith & Nephew that the statute governing PTAB judge appointments in its then-current form made the APJs principal officers who should have been confirmed by the US Senate (2018-2140). However, the Federal Circuit stopped short of overturning the AIA review regime altogether, limiting its decision in multiple key respects.

The outflow of patents from Intellectual Ventures LLC—as well as the launch of NPE campaigns asserting patents received from IV—has continued at a steady pace this year, and IV shows no signs of slowing down. In fact, public records suggest that late 2019, or perhaps early 2020, might see an uptick in IV divestitures.

Apple (4:19-cv-06769) and Samsung (4:19-cv-06773) have each filed an analogous complaint in the Northern District of California seeking declaratory judgments of claim preclusion, noninfringement, and invalidity of claims added by IXI IP, LLC and IXI Mobile (R&D) Ltd. (collectively, IXI) to a patent already held invalid. The Patent Trial and Appeal Board (PTAB) cancelled the patent’s claims through a final written decision in an inter partes review (IPR), a decision later affirmed by the Federal Circuit. Litigation over that particular patent nevertheless persisted. Why?

This past February, AVInnov LLC sued Charter Communications in the District of Delaware over four patents from a portfolio of more than three dozen that the Delaware NPE acquired in December 2018 from Intellectual Ventures LLC (IV). Before the deadline to answer, AVInnov voluntarily dismissed the case, in early August. Two months later, AVInnov assigned its entire portfolio to Cedar Lane Technologies Inc., a Canadian NPE already managing two litigation campaigns from its growing body of former IV patents, now numbering close to 100. It took Cedar Lane about a month to reassert the same four patents against Charter Communications (2:19-cv-00368), this time in the Eastern District of Texas, also suing Frontier Communications (2:19-cv-00269), also in the Eastern District, and Lions Gate Entertainment (Starz Entertainment) (1:19-cv-03189), in the District of Colorado. Accused are the defendants’ respective cable boxes.

This past week, Monterey Research, LLC, a subsidiary of IP advisory firm IPValue Management (d/b/a IPVALUE), followed up its first lawsuit, filed against Qualcomm, by accusing Nanya Technology (1:19-cv-02090) of infringement in a second District of Delaware complaint. Monterey Research asserts six patents against Nanya: two of them also asserted against Qualcomm, four of them new to litigation, and all of them acquired from Cypress Semiconductor through a series of transfers between the two, beginning in August 2016. Targeted in the complaint are various Nanya semiconductor devices and integrated circuit chips. The plaintiff’s parent, IPVALUE, has been owned by private equity firm Vector Capital since 2014.

The Federal Circuit has held in Arthrex v. Smith & Nephew that the appointment of administrative patent judges (APJs) by the Patent Trial and Appeal Board (PTAB) is unconstitutional. While the decision largely preserved the status quo by leaving the PTAB essentially intact, many cases may yet be affected, as Arthrex requires a rehearing by a different PTAB panel in some recently decided America Invents Act (AIA) reviews that are still within the appeal window. Now, as parties and stakeholders assess the decision’s impact, an RPX analysis indicates that Arthrex may affect more than 200 AIA reviews and over 50 active litigation campaigns in which the patents challenged in those reviews have been asserted.

Last quarter, Immersion Corporation’s CEO Ramzi Haidamus told investors that with the company’s last outstanding lawsuit settled, Immersion—which he said has been mired in constant patent litigation for the past 17 years—could now focus on a strategic initiative to drive long-term value for its shareholders. On November 6, Immersion released its third-quarter financials and provided investors with a broad overview of its plan for moving forward now that it has “transitioned out of cash burn mode”.

Proceeding pro se, individual inventor James L. Driessen has filed suit against Best Buy (1:19-cv-03301), Target (1:19-cv-03360), and WalMart (1:19-cv-03239) in the District of DC, accusing the retailers of infringing a single patent through the sale of “digital media known as ‘DVD + Digital’ ‘Blu-ray + Digital’ and/or ‘Blu-ray + DVD+ Digital’”. The sole asserted patent generally relates to purchasing a “physical access card” for digital downloadable media material at a “retail point of sale establishment”; as to Target and Best Buy, Driessen alleges “knowledge of the invention claimed” in the patent through suits filed over a decade ago in the first cases in this campaign—cases that ended after an unfavorable invalidity ruling in the District of Utah.

The streaming campaign of Helios Streaming, LLC (as exclusive licensee) and Ideahub, Inc. (as patent owner) has expanded for the second month in a row. October saw a third Delaware suit, with CBS (Showtime) joining Crackle, Sony, and Walmart (VUDU), and others, as defendants there, while November has seen the plaintiffs file in the Central District of California, this time against Lions Gate Entertainment (Starz Entertainment) (8:19-cv-02140). Targeted is Starz’s media streaming service, with multiple patents originally developed in whole or in part by the Electronics and Telecommunications Research Institute (ETRI), patents assigned to the plaintiffs through a web of agreements seeming to preserve interests in the outcome of the litigation by certain nonparties—the plaintiffs’ recent notice of interested parties in California, identifying no such nonparties, notwithstanding.

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.