The Federal Circuit has decided not to disturb a Delaware ruling that led to the reversal of a $236.8M verdict won by Densify against VMware last January—at least, for now. In June 2020, District Judge Leonard Stark dismissed one of the two Densify plaintiffs in suit—Cirba Inc. (“Inc.”)—for lack of standing, finding that it lacked exclusionary rights in the asserted patents because it had transferred too many of those rights to coplaintiff Cirba IP, Inc. (“IP”). On September 22, the Federal Circuit denied Inc.’s mandamus petition challenging that standing ruling but declined to address whether the company could cure the ownership defect retroactively. The court’s decision could lead to yet another chapter in this appellate battle, which has highlighted a growing district court split over the requirements for standing in patent suits.

Cirba Inc. (d/b/a Densify) and Cirba IP, Inc. (collectively, “Densify”) have filed suit against Dell (VMware) (1:19-cv-00742) over the provision of “vRealize Operations (‘vROps’), Distributed Resource Scheduler (‘DRS’), and other related products and services”, which offer optimization in virtual environments. The plaintiffs assert two patents, the first generally related to the management of virtualized environments; the second, to monitoring resource utilization or performance data and visualizing the risk of infrastructure overload. Densify also pleads claims for unfair competition under the Lanham Act, for deceptive trade practices under Delaware law, and for common law trademark infringement (involving the use of “Densify Marks” “densify”, “densification”, and “densifying”).