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”.

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.

Last August, Virginia Innovation Sciences, Inc. (VIS) filed additional, separate cases against Amazon and HTC, asserting patents that had just issued in a large family already in litigation against the two companies. Those suits were dismissed without prejudice shortly thereafter, apparently to let the earlier cases play out. They now have—at least partially. In an April 2018 per curiam decision, the Federal Circuit upheld judgments from the Eastern District of Virginia ending cases in Amazon’s and HTC’s favor as to most of the patents asserted, and earlier in the year, VIS appealed subsequent orders in the defendants’ favor as to the remaining patents. Rather than await outcomes in those second appeals, VIS has opened up new cases against both Amazon (4:18-cv-00474) and HTC (4:18-cv-00476), this time asserting even newer patents, issuing in March 2018 and April 2018, as well as reasserting those August 2017 patents. The plaintiff has also filed separate cases against Honeywell (4:18-cv-00475) and Philadelphia Contributionship Mutual (Vector Security) (4:18-cv-00477), asserting one of the 2018 patents also at issue against Amazon and HTC. All of this new litigation has been filed in the Eastern District of Texas, rather than in Virginia.

In September 2017, the Patent Trial and Appeal Board (PTAB) saw more than ten petitions filed in NPE campaigns involving networking and related technologies such as cybersecurity, including those waged by publicly traded Finjan Holdings, Inc.; prolific private litigant Realtime Data LLC; and Oyster Optics, LLC. Trial was instituted in September for an inter partes review (IPR) against Finjan and in IPRs against other frequent plaintiffs, including MyMail, Ltd. and Sound View Innovations, LLC. The Board issued final decisions in two covered business method (CBM) reviews against Uniloc Corporation Pty. Limited, the first AIA reviews against the NPE to reach final decisions since March 2016, and only the fourth to date. The PTAB also issued final decisions in IPRs against publicly traded Document Security Systems, Inc. as well as Acceleration Bay, LLC; Mobile Telecommunications Technologies, LLC; and Personalized Media Communications, LLC; among other NPEs.

Virginia Innovation Sciences, Inc. (VIS) has filed a second case against Amazon (2:17-cv-00422), asserting two patents already at issue in a separate, July 2016 suit against the defendant, as well as two patents newly asserted in the campaign, one of which issued on the date the complaint was filed, August 8. That same day, VIS filed yet another case against HTC (3:17-cv-00560), asserting two patents not among the multiple, related patents already at issue between the two defendants. In January 2017, those patents, also asserted against Amazon, were invalided under Alice, as patent-ineligibly drawn to the abstract idea of “converting a video signal for a mobile terminal to an ‘alternate display terminal’”. VIS has appealed that ruling to the Federal Circuit (2017-1482), as litigation before the district court continues.

The Patent Trial and Appeal Board saw the filing of petitions against a host of publicly traded NPEs in February, including Acacia Research Corporation, Pendrell Corporation, Wi-LAN Inc. (WiLAN), and Xperi Corporation (f/k/a Tessera Holding Corporation), with challenges also filed in campaigns waged by Intellectual Ventures LLC (IV); IP Bridge, Inc.; Uniloc Corporation Pty. Limited; and Monument Patent Holdings, LLC.

On the heels of a dismissal with prejudice in a prior case against LG Electronics (1:16-cv-00128), Virginia Innovation Sciences, Inc. (VIS) has added a suit against Amazon (1:16-cv-00861) to the litigation campaign that it began roughly five years ago. The new complaint asserts ten patents from a 25-patent family generally related to converting compressed video content received by a mobile phone from a wireless network into a video signal format ready for display on a larger external display (e.g. a television). Amazon’s Kindle, Fire, and Dash Button are the accused products. The list of prior defendants also includes Groupon, Open Table, and Samsung, with a case against HTC (2:16-cv-00060), filed in February 2016, the only other active suit in the campaign.

Virginia Innovation Sciences, Inc. has added a case against LG Electronics (1:16-cv-00128) to the one that it recently filed against HTC (2:16-cv-00060). Both complaints assert the same six patents (7,899,492; 8,050,711; 8,712,471; 8,903,451; 8,948,814; 9,118,794), which generally relate to converting compressed video content received by a mobile phone from a wireless network into a video signal format ready for display on a larger external display (e.g. a television). VIS accuses HTC and LG Electronics of infringement through the manufacture and sale of its smartphones, mobile phones, and tablets.

On February 8, 2016, Virginia Innovation Sciences, Inc. (VIS) rebooted its sole litigation campaign, asserting six patents (7,899,492; 8,050,711; 8,712,471; 8,903,451; 8,948,814; 9,118,794) from a family of 22 against HTC (2:16-cv-00060). The patents generally relate to converting compressed video content received by a mobile phone from a wireless network into a video signal format ready for display on a larger external display (e.g. a television). VIS accuses HTC of infringement through the manufacture and sale of its smartphones, mobile phones, and tablets.

Virginia Innovation Sciences (VIS) filed a third suit against Samsung, seemingly undeterred by a recent loss in court against that same defendant. The newest case against Samsung accuses the company’s smartphones of infringing a patent related to the transmission of multimedia from a mobile device to a second device (8,712,471). The patent-in-suit, which was issued in April 2014, claims priority to another VIS patent (7,899,492) that Samsung was found not to infringe in a decision last week.