On February 13, 2020, the Federal Circuit held in In re: Google (2019-0126) that the “regular, physical presence of an employee or other agent of the defendant conducting the defendant’s business” is required “at the alleged ‘place of business’” to establish venue. The decision undercut an expansive reading of the patent venue statute by District Judge Rodney Gilstrap of the Eastern District of Texas, holding in 2018 (in Seven Networks v. Google) that certain Google servers maintained in an ISP data center were enough to establish venue. Last week, the Federal Circuit indicated that it will not revisit its mid-February ruling, either through a panel rehearing or a hearing of the full court.

RPX completed a number of deals in March 2020 on behalf of its patent risk management network. The acquisitions occurred within the following market sectors: E-Commerce and Software; Mobile Communications and Devices; Networking; and Semiconductors.

The Federal Circuit recently resolved a long-simmering district court split over a controversial venue rule in In re: Google, rejecting a prior decision that the presence of certain Google servers in an ISP data center each qualified as a “regular and established place of business”. Rather, the appeals court held that the “regular, physical presence of an employee or other agent of the defendant conducting the defendant’s business” is required “at the alleged ‘place of business’”—though it clarified that it was not deciding whether a machine could serve as an agent, nor the related question of whether a machine can accept service. NPE Personalized Media Communications, LLC (PMC) has since seized on this language, asserting in another campaign that similarly located Google servers qualify as agents under the Federal Circuit’s holding. Now, both Google and campaign codefendant Netflix have argued to the contrary, countering that machines presently lack the capacity to “consent” to act on behalf of a principal.

Since his confirmation to the bench in September 2018, District Judge Alan D. Albright has taken active steps to make the Western District of Texas the new hotbed for patent litigation, including issuing a standing order that implements rules designed to appeal to all parties. Based on the early 2020 numbers (through February 14), all patent plaintiffs have taken notice, but NPEs in particular have decided to file in West Texas in ever increasing numbers, elevating Judge Albright’s district to the top of the list of most popular districts with such plaintiffs—above both the historical frontrunner, the Eastern District of Texas, and the more recent leader, the District of Delaware.

The US Supreme Court’s 2017 decision in TC Heartland significantly changed the distribution of patent suits through its ruling that a corporation “resides” for venue purposes in its state of incorporation. However, tension remained over the other, unaffected prong of the patent venue statute, under which venue is proper in part where a defendant “has a regular and established place of business”. District Judge Rodney Gilstrap of the Eastern District of Texas has since pushed an expansive reading of that prong, holding in 2018 (in Seven Networks v. Google) that certain Google servers maintained in an ISP data center were enough to establish venue. A subsequent decision with the same rationale has now been rejected by the Federal Circuit, which on February 13 held in In re: Google (2019-0126) that the “regular, physical presence of an employee or other agent of the defendant conducting the defendant’s business” is required “at the alleged ‘place of business’”. This decision is not the first in which the Federal Circuit has rebuffed an attempt by Judge Gilstrap to push a broad interpretation of that statutory prong.

As recently reported by RPX, Acacia Research Corporation has been an increasingly active plaintiff since it underwent a late-2018 leadership shake-up, launching its first new campaigns since 2015 and reviving a series of older ones. Amidst that ongoing ramp-up, Acacia has faced a recent setback in one of those rebooted campaigns, one waged by subsidiary Super Interconnect Technologies LLC (SIT). In mid-December, a Delaware judge ruled that SIT had insufficiently pled infringement in a storage technology lawsuit filed last January against HP. The plaintiff has now chosen to fight this ruling before the Federal Circuit, filing a notice of appeal on January 2. This setback comes as Acacia appears primed for further expansion, given a late-November announcement that it would receive up to $400M from hedge fund Starboard Value “for strategic investments and acquisitions”.

As reported repeatedly by RPX over the past year, Acacia Research Corporation’s litigation efforts are picking back up following a comprehensive leadership change triggered by activist investors in 2018. While Acacia’s freshly reconstituted board is reportedly working to “advance” the company’s IP business (including through augmenting Acacia’s IP portfolio through “acquisitions and partnerships”), USPTO records suggest that the NPE already has at least one new litigation campaign in the pipeline, perhaps involving patents originating with Fairchild Semiconductor or Micron. Meanwhile, this week saw Acacia—via a newly created subsidiary, Targeted Radio LLC—kick off its first new US campaign in four years with a suit against Pandora Media. The new suit against Pandora joins a number of recently filed cases in already existing Acacia campaigns, including one initiated over ten years ago.

In the wake of its recently announced leadership change, Acacia Research Corporation has revived yet another litigation campaign. Super Interconnect Technologies LLC (SIT), an Acacia affiliate, has filed suit against Alphabet (Google) (2:18-cv-00463) in the Eastern District of Texas; Huawei (2:18-cv-00462), Lenovo (1:18-cv-01729), Motorola Mobility (1:18-cv-01730), and Sony (1:18-cv-01731) in the District of Delaware; and ZTE (3:18-cv-02932) in the Northern District of Texas. SIT asserts three patents, generally related to communicating clock and data signals over a single clock transmission line, with mobile devices and laptops offering Universal Flash Storage (UFS) targeted across the campaign. In May 2016, a yearlong case against Samsung over the same three patents ended with a settlement during claim construction briefing.

Samsung is the newest target of Acacia Researc Corporation’s Super Interconnect Technologies LLC (SIT), and the suit asserts three patents that the entity has not previously used in litigation (6,463,092, 7,158,593, 7,627,044). The patents relate to transmitting data and clock signals, and the suits accuse Samsung’s mobile devices of infringement. SIT is the exclusive licensee of the patents-in-suit, which originated with Silicon Image. They were assigned to Acacia in July 2013.