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“Confidential” Agreement Filed with USPTO Sets Expectations for Half of the Proceeds from Assertion of Gaming Portfolio at $96M
New Patent Litigation
Bot M8 LLC, an NPE with apparent ties to Acceleration Bay, LLC, has filed suit against Sony (1:19-cv-07529) in the Southern District of New York over the provision of the PlayStation 4, PlayStation 4 Slim, and PlayStation 4 Pro consoles, the PlayStation Network online service, and Sony-developed video games that include “balanced multiplayer matchmaking or mutual authentication functionality”. The NPE asserts six gaming patents received, among several other US patents and international counterparts, from Japanese company Universal Entertainment in an assignment with effective date on October 13, 2016. The “confidential” patent purchase agreement, filed with the USPTO, identifies payment and timing terms that indicate a target of $96M to have been paid to Universal Entertainment months ago.
August 18, 2019
Fujitsu Entity Files DJ Action Against Data Scape as Various Courts Grant Stays to Facilitate Settlements Elsewhere
New Patent Litigation
Fujitsu (PFU Limited) (5:19-cv-04810) has filed a complaint in the Northern District of California, seeking declaratory judgments that certain of its ScanSnap scanners, and related software, do not infringe six patents held by Data Scape Limited. Data Scape, an Irish NPE, launched litigation over a portfolio acquired from Sony late last year, eventually hitting more than a dozen defendants in multiple district courts and before the International Trade Commission (ITC). Among those cases was a suit in the Eastern District of Texas, filed by Data Scape against other Fujitsu subsidiaries—the wrong Fujitsu subsidiaries, according to this new complaint, which attempts to join the dispute between the correct parties, doing so in California, rather than Texas. The filing comes as joint motions to dismiss to facilitate settlements have been filed across most of Data Scape’s ongoing cases, which were filed after the Central District of California issued an Alice order that dealt a serious blow to most of its original lawsuits.
August 18, 2019
Ten More Patents from a Growing Camera and Lens Portfolio Debut in Litigation
New Patent Litigation
Corephotonics Ltd. has upped the ante in its litigation Apple. Last December, District Judge Lucy H. Koh stayed two earlier cases, consolidated before her in the Northern District of California, to await resolution of various inter partes review (IPR) proceedings before the Patent Trial and Appeal Board (PTAB). This past week, Corephotonics filed a third case against Apple (3:19-cv-04809) in the same district, asserting ten additional patents, variously related to either a telephoto lens and/or camera assembly, or a dual-lens camera system incorporating separate lenses and sensors for wide-angle and telephoto image capture. The new complaint again targets Apple’s provision of certain iPhones, including the iPhone 7 Plus, iPhone 8 Plus, iPhone X, iPhone Xs, and iPhone Xs Max.
August 17, 2019
Equitable IP Plaintiff Revives Online Music Service Campaign
New Patent Litigation
On August 13, 2019, John T. Meli, Jr., the founder of Equitable IP Corporation, brought one of the many Texas entities associated with the monetization firm out of tax forfeiture in the state. A few days later that entity, Post Media Systems LLC, has resuscitated a litigation campaign that went dormant roughly two years ago, suing Alphabet (Google) (1:19-cv-05539), Apple (1:19-cv-05538), and Pandora (1:19-cv-05540) over a family of patents generally related to managing media files for playback over a computer network. Defendants throughout the campaign have been accused of infringement through the provision of music and radio online services and related apps, in these new complaints, Google Play, Apple Music, and Pandora Radio, respectively.
August 17, 2019
Graphics Processor Patent Asserted for the First Time in Litigation, Against Qualcomm
New Patent Litigation
GPU++, LLC, an entity formed in California in March 2018, has filed suit against Qualcomm (6:19-cv-00474) over a graphics processor patent that it acquired that same month. The NPE targets Qualcomm over the provision of systems-on-a-chip (SoCs) with Adreno 3x, 4x, and 5x GPUs or “having any GPU with FlexRender technology or similar functionality”. GPU++ pleads that Qualcomm’s knowledge of the asserted patent dates back to at least January 2011, around which time the named inventor, Edward A. Hutchins, purportedly attended a meeting with Qualcomm to present “his inventive concept of a new reconfigurable 3D GPU capable of operating in either or both of a direct rasterizing mode (i.e., direct-rendering mode) or a tiling mode (i.e., binning mode)”.
August 16, 2019
Gilstrap Requires Early Disclosure of Alice Arguments in New Section 101 Standing Order
Patent Litigation Feature
A recent RPX analysis showed that Section 101 invalidation rates have dropped significantly since the Federal Circuit issued its February 2018 decisions in Berkheimer and Aatrix, holding that the resolution of Alice motions may be premature where a party raises questions of fact as to a patent’s inventiveness. Now, District Judge Rodney Gilstrap has further raised the bar for defendants hoping to bring eligibility challenges in the Eastern District of Texas. In a recently issued standing order, Judge Gilstrap has required that any party intending to move for dismissal under Section 101 serve “Eligibility Contentions” containing a detailed disclosure of the “legal and factual basis” for that motion. This information must be filed within 45 days of receiving service of the plaintiff’s “Disclosure of Asserted Claims and Infringement Contentions”. The required factual disclosures, to comprise prior art establishing that a patent’s claims were “well understood, routine, [and] conventional”, reflect the manner in which Berkheimer and Aatrix have elevated the role of facts in the Section 101 analysis, which courts have historically treated as primarily a question of law—a shift that has divided even the Federal Circuit itself in debates over the impact of those two opinions.
August 16, 2019
Dropbox DJ Action Sprouts Up in Delaware after Customer Suit in Texas
New Patent Litigation
In mid-July, Motion Offense, LLC filed a Western District of Texas case accusing Sprouts Farmers Market (6:19-cv-00417) of infringing two data sharing patents through the use of Dropbox Business “for, among other things, sharing and storing data”. Roughly one month later, Dropbox has responded by filing a complaint against Motion Offense in the District of Delaware (1:19-cv-01521) seeking declaratory judgments of noninfringement of the same two patents asserted in Texas. Patents naming the same inventor, Robert Paul Morris, have popped up in litigation by multiple NPEs over the past few years.
August 15, 2019
Recent Ruling Sheds Light on Pleading Requirements in the Western District of Texas
Patent Litigation Feature
NPE Parity Networks LLC has recently beaten back motions to dismiss its two March 2019 cases in the Western District of Texas against Cisco for pleading inadequacies. In a single order dated on July 26 and entered on the docket of both cases, District Judge Alan D. Albright ruled that Parity’s pleading with respect to direct infringement, indirect infringement, and willful infringement are all sufficiently adequate to survive an early challenge. In response, Cisco promptly filed answers to the two live complaints against it—and Parity Networks filed a third complaint, accusing Cisco (6:19-cv-00458) of infringing three more network traffic management patents from its portfolio, these three new to litigation. Cisco is again accused of infringement through the provision of an overlapping set of network hardware operating systems (Cisco IOS, Cisco IOS XR, Cisco IOS XE, and Cisco NX-OS) offering various network traffic management features as well as certain routers, including, in the new complaint, Cisco Carrier Routing System (CRS) routers.
August 11, 2019
USPTO Records Reveal Uber as Recipient of Portfolio from Intellectual Ventures
Patent Market, Patent Watch
Uber appears to be among a group of operating companies—which includes Citrix, Facebook, Samsung, Seagate, and TiVo—to receive patents from Intellectual Ventures LLC (IV) in the past two years. According to recently released USPTO records, the company holds a portfolio of over 50 US and foreign assets that it received from IV through a holding company managed by one of its executives.
August 10, 2019
Rothschild Kicks off Media Distribution Campaign with Patents from a New Source
Patent Market, Patent Watch
Having filed roughly 30 new cases since June 1, and more than 100 new suits since the start of 2019, prolific inventor and patent plaintiff Leigh M. Rothschild is poised to land—for the fourth year in a row—among this year’s most frequent NPE plaintiffs. (To view the 2018 list of the most frequent NPE plaintiffs, see the “Patent Litigation and Marketplace Report” that RPX published on Insight this past March.) Historically, Rothschild (through various associates) has asserted in litigation patents on which he is a named inventor, or, as was particularly the case in 2017-2018, patents acquired from Intellectual Ventures LLC (IV). Now, public records indicate that Rothschild looked to a new source for patents to assert in his latest campaign, which was recently kicked off with suits against Adobe and Blackbaud.
August 10, 2019