The Federal Circuit’s February 2018 decisions in Berkheimer and Aatrix have had a sweeping impact on district court patent eligibility challenges by establishing that factual disputes over inventiveness may preclude dismissal under Alice. A recent RPX analysis indicates that the result has been a roughly 23% drop in nationwide Section 101 invalidations by patent since those opinions issued. Now, a new Federal Circuit opinion may provide an additional obstacle for defendants filing Alice motions: On August 16, the appeals court clarified that Aatrix also requires district courts to address claim construction disputes before issuing a ruling on a patent’s eligibility.

MyMail, Ltd. has added four more Texas cases to the litigation campaign begun back in 2004, asserting in new complaints a familiar network connectivity patent against a wide variety of Wi-Fi-enabled devices, specifically those supporting WPS (Wi-Fi Protected Setup) and/or WPA (Wi-Fi Protected Access)/WPA2/WPA3. Canon (2:18-cv-00015), HP (2:18-cv-00016), and Samsung (2:18-cv-00017) have been sued in the Eastern District of Texas, where most of the NPE’s cases have been filed, and Lenovo (1:18-cv-00048) has been sued in the Western District of the state. These new suits join active cases against Acer (also in the Western District), NETGEAR (in the District of Delaware), and TCL Communications (TCT Mobile US) in the Central District of California.

The Patent Trial and Appeal Board (PTAB) saw the number of petitions for AIA review in November hold fairly steady at 111 (compared to October’s 128) as the US Supreme Court continued its review of the constitutionality of inter partes review (IPR) in Oil States v. Greene’s Energy Services, for which oral arguments were held on November 27. Among the NPEs targeted by petitions brought in November were publicly traded Quarterhill Inc. and Xperi Corporation, prolific litigant Brian Yates, and several privately held NPEs waging networking campaigns, including Alacritech, Inc.; Iridescent Networks, Inc.; Monument Patent Holdings, LLC; MyMail Ltd.; and Oyster Optics LLC. The PTAB also instituted trial in November for other IPRs against Alacritech and Quarterhill and for an IPR against Plectrum LLC. Final decisions issued by the Board in November include one in the automotive campaign waged by Paice LLC and in IPRs against InfoGation Corporation and VoIP-Pal.com, Inc., both of which saw their patents survive review.

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.

MyMail, Ltd. has filed cases against new defendants in its long-running litigation campaign, Netgear (1:17-cv-01219), Panasonic (2:17-cv-00606) and Ricoh (2:17-cv-00605), with Netgear sued in the District of Delaware and the latter two in the Eastern District of Texas. The NPE has also filed new suits against previous defendants Acer (1:17-cv-00823), in the Western District of Texas, and TCL Communications (TCT Mobile) (8:17-cv-01461), in the Central District of California, each of which recently saw earlier, Eastern District of Texas cases dismissed without prejudice. All five new suits assert the network connectivity patent at issue in the campaign, with MyMail alleging infringement through the provision of various Wi-Fi devices supporting WPS (Wi-Fi Protected Setup) and/or WPA (Wi-Fi Protected Access)/WPA2.

MyMail, Ltd. has added cases to its long-running litigation campaign, begun in 2004, asserting against new defendants both the two toolbar customization patent (8,275,863; 9,021,070) and the network connectivity patents (8,732,318) already at issue. MyMail accuses Disney (ESPN) (2:17-cv-00200) of infringing the ‘863 and ‘070 patents through provision of its ESPN Toolbar plug-in and Acer (2:17-cv-00253), Konica Minolta (2:17-cv-00254), Nikon (2:17-cv-00255), Pantech (2:17-cv-00256), and TCL (2:17-cv-00257) of infringing the ‘318 patent through the manufacture and sale of various mobile devices, including smartphones and Wi-Fi-enabled cameras. The three patents now in suit belong to the same eight-member family, which includes a fourth patent (6,571,290) that was asserted years ago to kick off this campaign.

MyMail, Ltd. has added another case to its growing litigation campaign, accusing Fujifilm (2:16-cv-01357) of infringing a single patent (8,732,318) through the manufacture and sale of Wi-Fi-enabled cameras. The ‘318 patent, generally related to facilitating network connectivity, is one patent in an eight-member family owned by MyMail, which asserted an earlier network connectivity patent (6,571,290) in a case filed against multiple Internet service providers a dozen years ago. The NPE also asserted two toolbar customization patents (8,275,863; 9,021,070) from that family in one case filed in 2013 and in multiple recent cases, all filed this year, against defendants ranging from Nasdaq to Comcast.

MyMail, Ltd. has added cases to its sole litigation campaign that assert a single patent (8,732,318) not yet seen in litigation. Mobile computing devices that support WiFi Protected Setup (“WPS”) made and sold by Huawei (2:16-cv-01293), HiSense (2:16-cv-01352), Lexmark (2:16-cv-01353), or ZTE (2:16-cv-01294) are accused of infringement. The ‘318 patent, generally related to facilitating network connectivity, is one patent in an eight-member family owned by MyMail, which asserted an earlier network connectivity patent (6,571,290) in a case filed against multiple Internet service providers a dozen years ago and which asserted two toolbar customization patents (8,275,863; 9,021,070) in one case filed in 2013 and several more recent cases, all filed this year, against defendants ranging from Nasdaq to Comcast.

Comcast (2:16-cv-01280), ooVoo (2:16-cv-01281), and Panda Security (2:16-cv-01282) are the latest defendants to be added to the toolbar customization campaign of MyMail, Ltd. The companies’ XFINITY, ooVoo, and Panda toolbars, respectively, are targeted with the two patents (8,275,863; 9,021,070) that have been asserted throughout this second phase of the NPE’s litigation campaign. The first phase saw an earlier member of the same patent family asserted with limited success against a host of Internet service providers.

MyMail, Ltd. has filed new cases against Yahoo (2:16-cv-01000), in September, and Oracle (2:16-cv-01249), in November. The Texas NPE continues to assert two patents (8,275,863; 9,021,070) generally related to customizing a toolbar over the Internet, and software by which users can customize Yahoo and Ask.com toolbars is targeted. MyMail’s litigation campaign began over a decade ago with a suit asserting an earlier-issuing member (6,571,290) in this eight-patent family against multiple Internet service providers.