In May 2023, XR Communications, LLC (d/b/a Vivato Technologies) filed separate cases against AT&T (AT&T Mobility), Deutsche Telekom (T-Mobile), and Verizon (Verizon Wireless) in the Eastern District of Texas, accusing each of infringing five wireless communications patents. Both Ericsson and Nokia have since intervened in that litigation. Two additional patents, in the same asserted family, have now issued to the plaintiff, one in early September and the other in early October, prompting another round of complaints, one against each of the three wireless carriers, all filed again in the Eastern District of Texas where District Judge Rodney Gilstrap is presiding over the litigation.

Last month, XR Communications, LLC (d/b/a Vivato Technologies) filed separate cases against AT&T (AT&T Mobility) (2:23-cv-00202), Deutsche Telekom (T-Mobile) (2:23-cv-00204), and Verizon (Verizon Wireless) (2:23-cv-00203) in the Eastern District of Texas. Asserted in each complaint are five wireless communications patents, with infringement allegations focused on the provision of certain cellular base stations and radio access network (RAN) solutions. The suits have been assigned to District Judge Rodney Gilstrap, with the deadline to answer, or otherwise respond to each complaint, now pushed into mid-July.

XR Communications, LLC (d/b/a Vivato Technologies) has filed additional suits against existing campaign defendants Microsoft (6:23-cv-00124) and Samsung (6:23-cv-00125), targeting certain devices—for Microsoft, Surface-series convertible laptops; and for Samsung, Galaxy-series smartphones and tablets and Samsung-series TVs—that support MIMO and/or MU-MIMO technologies with a wireless communications patent already in suit against both. The new cases have been filed in the Western District of Texas, with litigation also active in the campaign in the Central and Northern Districts of California, as well as before the Patent Trial and Appeal Board (PTAB).

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.

Western District of Texas Judge Alan D. Albright has replaced an August 29, 2022 order with a September 9, 2022 order, announcing in each that “speculation and incomplete discovery often plagues early transfer motions”. The court explained that its current general case schedule, modified in response to feedback from the Federal Circuit, opens venue discovery automatically upon the filing of a motion to transfer, with claim construction hearings (typically scheduled early) often delayed to comply with the mandate that transfer consideration should precede any turn to substantive issues in the case (like claim construction). Per Judge Albright, “[p]arties then began abusing this process”, “strategically wait[ing] to file their transfer motions to delay the case”. Comparing defendants’ conduct during venue discovery, Judge Albright then handed down a new scheduling framework for the XR Communications, LLC (d/b/a Vivato Technologies) case before him, one that places venue consideration after the close of general fact discovery but still before Markman.

After filing more than a dozen new cases in mid-June, XR Communications, LLC (d/b/a Vivato Technologies) was not done. Since then, the plaintiff has added suits against Dell (6:21-cv-00646), HP (6:21-cv-00694), and Microsoft (6:21-cv-00695) to those filed earlier against Alphabet (Google), Amazon (eero), Apple, ASUSTek, Cisco, Comcast, CommScope (ARRIS Solutions, Ruckus Wireless), D-Link, Hon Hai Precision Industry (Belkin), HP Enterprise (HPE) (Aruba Networks), NETGEAR, Samsung, and Ubiquiti Networks. The latest complaints focus on one of the now seven patents-in-campaign, alleging infringement through the provision of Wi-Fi-enabled laptops, tablets and two-in-ones, and desktops that support MIMO and/or MU-MIMO technologies.

XR Communications, LLC (d/b/a Vivato Technologies) has filed more than a dozen new cases, one each against Alphabet (Google), Amazon (eero), Apple, ASUSTek, Cisco, Comcast, CommScope (ARRIS Solutions), and Samsung in the Western District of Texas; against D-Link, Hon Hai Precision Industry (Belkin), HP Enterprise (HPE) (Aruba Networks), NETGEAR, and Ubiquiti Networks in the Central District of California; and against CommScope (Ruckus Wireless) in the Northern District of California. XR Communications targets various wireless networking capabilities of certain defendant devices—including access points, controllers, routers, and streaming devices—with overlapping subsets of four patents. The new wave arrives as the prior, 2017 wave of litigation from the same plaintiff comes back to life at the conclusion of a set of inter partes reviews (IPRs) of three patents asserted previously.

Throughout May 2018, the Patent Trial and Appeal Board (PTAB) saw activity in multiple long-running campaigns, including challenges brought against patents and plaintiffs with colorful and tangled litigation histories. The Board saw petitions for AIA review brought in May against Publishing Technologies LLC, an NPE controlled by patent attorney and frequent litigant Bradley D. Liddle; in the mobile devices campaign waged by AGIS Software Development LLC; and in the networking campaign brought by XR Communications, LLC. Also in May, the Board instituted trial for inter partes reviews (IPRs) against Iridescent Networks, Inc. and Oyster Optics, LLC. Final decisions issued in May include three against prolific plaintiff Realtime Data LLC, which saw claims cancelled from one of its data compression patents while another two survived unscathed, as well as final decisions cancelling claims from patents held by General Patent Corporation and VirnetX Holding Corporation.

In April 2017, XR Communications, LLC (d/b/a Vivato) launched a litigation campaign with 11 lawsuits, each asserting the same three wireless communications patents. Quick dismissal of one of those cases left ten active in the Central District of California, the one against Ruckus Wireless becoming messy following Brocade’s sell-off of Ruckus to ARRIS in the wake of its own acquisition by Broadcom. XR Communications tried to salvage the situation by filing against ARRIS in the Los Angeles court, but District Judge Andrew J. Guilford handed down a colorful March 20, 2018 order, transferring the Ruckus Wireless case to the Northern District of California. XR Communications has responded by dismissing its Central District case against ARRIS and filing a new one (5:18-cv-02736) in the Northern District, targeting certain access points and routers sold by ARRIS, including certain of its SURFboard and Touchstone cable modems. Meanwhile, back down in Los Angeles, the court has stayed the remaining cases in light of multiple petitions filed for inter partes review (IPR) of the three patents-in-suit.