In June 2020, the International Trade Commission (ITC) dealt a blow to INVT SPE LLC when it affirmed a final initial determination that certain cellular networking patents asserted against HTC were neither standard essential nor infringed by certain HTC smartphones. The Federal Circuit has now affirmed that setback for the plaintiff, an entity controlled by Fortress Investment Group LLC, by upholding that ruling—albeit on a different basis. In an August 31 precedential decision, the court held that the ITC erred in construing the remaining patent claim as requiring that an accused product actually perform the claim limitation at issue to infringe, rather than merely being capable of doing so, but nonetheless agreed on the same record as to essentiality and infringement.

The Patent Trial and Appeal Board (PTAB) saw activity in August 2018 involving a variety of frequent litigants. This included petitions for inter partes review (IPR) filed against two NPEs controlled by Fortress Investment Group LLC, INVT SPE LLC and Uniloc 2017 LLC, the latter of which has in recent months cofiled a barrage of lawsuits with subsidiaries of Australian NPE Uniloc Corporation Pty. Limited (Uniloc). The PTAB also instituted trial in August for IPRs against Uniloc 2017 and some of its campaign coplaintiffs, and in an IPR against an NPE controlled by patent attorney Brian Yates, whose US litigation has waned as he pursues a new patent licensing initiative through his company iPEL, Inc. Finally, the PTAB issued final decisions in August for IPRs against Uniloc, Empire IP LLC, and Quarterhill Inc.

ZTE is now the third company to have been sued over telecommunications patents acquired by Fortress Credit Group LLC from Inventergy Global, Inc. Unable to make scheduled payments on $10M of debt, Inventergy entered into a restructuring agreement with Fortress in December 2016, after which it assigned 740 telecommunications patents to INVT SPE LLC, an entity managed by Fortress affiliate DBD Credit Funding LLC. INVT SPE, which sued ZTE on August 29, also has active cases against Apple and HTC; all three lawsuits assert the same seven patents, which were acquired from Inventergy in April and which originated with Panasonic.

Since the US Supreme Court issued its decision in TC Heartland v. Kraft Foods Group Brands, RPX has seen an upswing in venue-related filings by both plaintiffs and defendants—with indications that some NPEs may be throwing in the towel on Texas, while others are seemingly digging in. Defendants have also begun to adapt their defensive strategies, asserting more comprehensive interpretations of the patent venue statute and proactively maintaining their right to bring venue challenges down the road.

Last Monday, the US Supreme Court’s TC Heartland decision returned a key portion of the patent venue statue, one that allows infringement suits to be brought where a defendant corporation “resides”, to its prior interpretation: such a defendant “resides” only in its state of incorporation. Three days later, two February cases filed in Delaware by Inventergy, Inc. and controlled by Fortress Investment Group LLC, one each against Apple and HTC, were voluntarily dismissed without prejudice. Fortress refiled those two suits, accusing Apple (2:17-cv-03738) and HTC (2:17-cv-03740) of infringing the same seven mobile telecommunications patents (6,466,563; 6,611,676; 6,760,590; 7,206,587; 7,760,815; 7,764,711; 7,848,439), but this time in New Jersey. Fortress did so through an entity (INVT  SPE LLC) that it had created in March and with much more specific allegations supporting its contention that venue is proper in New Jersey.