Plaintiffs tied to monetization firm Atlantic IP Services Limited have launched multiple litigation campaigns with cases most often filed in the Western District of Texas. A frequent defendant, Apple, has responded with repeated motions to transfer, for convenience, to the Northern District of California, with various results: several remain in limbo before District Judge Alan D. Albright after the Federal Circuit issued a writ of mandamus requiring that the transfer motions be adjudicated before the end of discovery; another was stricken in its entirety as a discovery sanction; and other such motions have been granted—with a bit of an asterisk, that is, over extensive criticism of a repeat venue declarant. Most recently, Judge Albright has outright denied an Apple motion to transfer in one Atlantic IP-tied suit, and, in an order newly made public, transferred another of those cases—but not to the Northern District of California, as Apple had requested.

On November 8, 2022, the Federal Circuit vacated scheduling orders in three cases filed against Apple in the Western District of Texas. The appellate court ruled that District Judge Alan D. Albright abused his discretion both by pushing forward on substantive matters in the litigation without deciding a trio of Apple motions to transfer for convenience—which would be left, according to the vacated scheduling orders, for resolution after the close of all fact discovery—and by denying Apple’s motions to stay the cases pending resolution of the mandamus petitions themselves. Now, Judge Albright has responded.

The Federal Circuit has issued another rebuke against Western District of Texas Judge Alan D. Albright over his approach to transfer timing. In the past few years, the appellate court has repeatedly ordered Judge Albright to consider transfer motions before turning to substantive issues like claim construction, leading him to modify his general case schedule to open venue discovery automatically upon the filing of a motion to transfer, with Markman hearings (typically scheduled early) often delayed. However, Judge Albright has argued that parties have since “beg[u]n abusing this process”, “strategically wait[ing]” to file their transfer motions—prompting him to impose a modified scheduling order in three cases against Apple that pushed the consideration of its convenience transfer motions to after the close of fact discovery. Now the Federal Circuit has overturned that scheduling order, ruling in three decisions—one precedential—that Judge Albright abused his discretion by pushing forward on substantive matters without deciding Apple’s transfer motions, and by denying its motions to stay pending appeal.

Aire Technology Limited (f/k/a Bowen Ventures Limited) has added a Western District of Texas case against Alphabet (Google) (6:21-cv-01104) to its litigation over patents received from G+D. The four patents-in-suit are broadly directed to secure contactless communications, with infringement allegations targeting the defendant over Pixel-series smartphones that support Google Pay.

As might have been predicted when Aire Technology Limited (f/k/a Bowen Ventures Limited) launched its first litigation campaign in September, then targeting Samsung’s provision of devices that support Samsung Pay or Google Pay, the Irish NPE has followed up with a suit against Apple (6:21-cv-01101), targeting devices that support Apple Pay. The patents asserted in this campaign originated with G+D and generally relate to secure contactless communications.

Multiple litigation finance players announced large fundraises during the third quarter, signaling a continued interest in the asset class by institutional investors. Also during Q3, several NPEs began new campaigns financed by third parties, including an established litigation finance firm as well as a hedge fund.

Aire Technology Limited (f/k/a Bowen Ventures Limited), yet another NPE formed in Ireland and associated with Atlantic IP Services Limited, has filed its first lawsuit. In a new Western District of Texas complaint, Aire accuses Samsung (6:21-cv-00955) of infringing four former G+D patents generally related to secure contactless communications between devices through the provision of devices (e.g., smartphones and smart watches) that support Near Field Communication (NFC) and other mobile payment applications, such as Samsung Pay and Google Pay. Aire joins a long and growing list of Irish NPEs to assert former operating company patents in US courts.