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As part of a clean up after the December 2018 close of fact discovery, District Judge Susan Illston of the Northern District of California has denied a motion to compel discovery related to the financing of an NPE plaintiff’s litigation as irrelevant under the circumstances of the case. Micron tethered relevance of the information sought to a need to “uncover possible bias issues” with witnesses testifying on behalf of plaintiff MLC Intellectual Property, LLC (MLC IP) and with any potential jurors in the upcoming trial, currently scheduled for August 2019. The court disagreed, noting that MLC IP had complied with the disclosure requirements of the local rules, identifying its principals as the only nonparties having a financial interest in the suit’s outcome, and had confirmed that nonparty witnesses are not funding the litigation. The court also pointed to its ability to question jurors about potential bias issues in camera if necessary. As this long and winding litigation heads into its expert discovery period, the court has yet to resolve all of the parties’ disputes over their pleadings.

Last week, Dropbox (1:19-cv-00048) joined Amazon and F5 Networks as defendants in the US 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.

The last of the cases in its first round having been dismissed in December, Flectere LLC has reloaded, suing four more retailers in the Eastern District of Texas. In May, the NPE, apparently controlled by a former IP Valuation Partners LLC (d/b/a IPVal) principal, has asserted up to three patents, generally related to the use of online forms to gather information, against Academy, Office Depot, Sears, and Staples; the new cases accuse Costco (2:19-cv-00017), FedEx (2:19-cv-00018), Target (2:19-cv-00019), and UPS (2:19-cv-00020) of infringement through the operation of their e-commerce platforms.

Recent setbacks before the Patent Trial and Appeal Board (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”).

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.

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.

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.

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 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.

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.