The Federal Circuit has just upheld an attorney fees award for Amazon in litigation brought by Virginia Innovation Sciences, Inc. (VIS). Ruling on January 5, the appellate court agreed that the case became “exceptional” under Octane after a Markman order destroyed the NPE’s remaining claims, faulting the plaintiff for pushing ahead afterward without a viable infringement theory. Along the way, the Federal Circuit also more broadly clarified the significance of summary affirmances under Rule 36, explaining that a decision to uphold a ruling without providing an opinion is not a reflection of whether a case was “close, frivolous, or noncontroversial”.

District Judge Amos L. Mazzant has denied a motion to dismiss Eastern District of Texas cases brought by Innovation Sciences, LLC against Resideo Technologies and Philadelphia Contributionship Mutual (Vector Security). Those two defendants challenged the plaintiff’s standing to bring the lawsuits as to one of the many patents asserted in the campaign, arguing that a coinventor’s employment agreement at the time of the patent’s application nullified a later assignment of rights to the predecessor of Innovation Sciences. Judge Mazzant’s denial presents a procedural warning for patent infringement defendants.

Innovation Sciences, LLC, the Texas incarnation of Virginia Innovation Sciences, Inc. (VIS), has added a new round of litigation against four defendants already active in its long-running campaign, filing five suits against Amazon (4:19-cv-00769), HTC (4:19-cv-00752, 4:19-cv-00770), Resideo Technologies (4:19-cv-00771), and Philadelphia Contributionship Mutual (Vector Security) (4:19-cv-00772) last week in the Eastern District of Texas. Those new cases follow an August 2019 complaint filed against HTC and Resideo before the International Trade Commission (ITC) (337-TA-1180). This burst of activity comes in the wake of the Federal Circuit’s October 9 refusal to take up on mandamus a motion to transfer four existing cases, filed against the same defendants in July 2018, out of Texas and back to the Eastern District of Virginia. That motion was denied in a 69-page order months in the making and notable in several respects, including through its detailed analysis of how District Judge Liam O’Grady back in Virginia—despite having issued multiple orders regarding earlier members of the same patent family, including Alice and claim construction decisions—“does not have [the] extensive familiarity with the technology or the legal issues involved” that might otherwise have weighed in favor of transfer.