The apportionment of patent rights can be a tricky business—particularly where a plaintiff has pledged its patents as collateral, as just illustrated by a new precedential decision from the Federal Circuit. In May 2022, Western District of Texas Judge Alan D. Albright dismissed a case brought by Intellectual Tech LLC (IT) against Zebra Technologies due to lack of standing, holding that because the plaintiff’s default on a loan gave its lender the option to sell the plaintiff’s patent or assert the patent itself, the plaintiff had been deprived of all substantial rights in that patent. However, the Federal Circuit ruled on May 1 that Judge Albright had fallen into an increasingly familiar trap by confusing the jurisdictional issue of standing, which requires a mere injury; with the issue of whether the plaintiff is a “patentee” as required to bring an infringement suit under 35 USC § 281.

Delaware Chief Judge Colm F. Connolly has been at the center of a debate over litigation transparency since he imposed stringent new disclosure requirements in his courtroom last April. However, while patent plaintiffs with suits before Judge Connolly have been dealing with resulting compliance issues for several months, the impact is now being felt outside his district as the result of a multijurisdictional discovery dispute involving the once-prolific litigant WSOU Investments, LLC (d/b/a Brazos Licensing and Development) (“WSOU”). In January, Salesforce—a defendant in ten WSOU cases brought in the Western District of Texas—filed a Delaware motion asking the court to force two Delaware entities with allegedly “substantial interests” in WSOU to provide information on their ownership and control. WSOU filed a motion to seal much of that material, sought by Salesforce in support of a license defense. Last week, Judge Connolly not only denied that sealing motion but also rolled back all prior redactions in the case—revealing new details on the asserted license, which stems from WSOU’s alleged ties to an individual behind another well-known NPE.

Over the past few years, Uniloc 2017 LLC has been embroiled in several appellate battles over legal issues stemming from its complex relationship with parent Fortress Investment Group LLC and other affiliates. The Federal Circuit has just closed another chapter in one of those battles, this one focused on whether Uniloc would be forced to unseal the details of its licenses with third parties as a result of a dispute over standing. A divided panel of that court has answered that question in the negative, holding that the public does not have a broad interest in the consideration paid for patent licenses—ordering Northern District of California Judge William Alsup to revisit a sweeping unsealing order that had already been the subject of one appeal and remand. The decision prompted a heated dissent from Circuit Judge Haldane R. Mayer.

RPX detailed last week how the once-prolific litigant Uniloc 2017 LLC, a Fortress Investment Group LLC subsidiary, has ceased the active filing of litigation as it fights multiple appellate battles before the Federal Circuit. One of those appeals challenges a ruling that the NPE lacked standing in litigation with Google, while a second appeal deals with a related decision requiring Uniloc 2017 to disclose various details on its licensing activity. On December 6, oral arguments for the latter appeal took place before the Federal Circuit, with judges pressing counsel for Uniloc, defendant-appellee Apple, and intervenor Electronic Frontier Foundation (EFF) on the proper standard for weighing motions to seal third-party licensing information.

Uniloc 2017 LLC was a notably prolific litigant around three years ago, but the NPE has since ceased the active filing of litigation as it fights appellate battles on multiple fronts. Late last month, one of those appeals ended adversely for the Fortress Investment Group LLC subsidiary, when the Federal Circuit affirmed a consolidated Patent Trial and Appeal Board (PTAB) decision for Apple, Facebook and WhatsApp, Huawei, and LG Electronics (LGE) that invalidated claims from a Uniloc patent and ordered the PTAB to reconsider two additional claims previously upheld. Meanwhile, that same court is weighing Uniloc’s challenges of two rulings with an already sweeping impact: an order finding that Uniloc lacked standing when it sued Alphabet (Google) based on a provision from its funding agreements with Fortress, and another in litigation against Apple that forced the NPE to unseal a swath of documents detailing its licensing activity.

Following its late 2019 acquisition of Vannin Capital, Fortress Investment Group LLC has announced that the operations of the UK-based litigation funder—including a number of its employees—are “now being restructured into the Fortress Legal Assets business”. According to Fortress, this change will have no impact on the existing investments of Vannin Capital, which at the time of its acquisition reported having $500M in available investment capital and assets under management “consistently in the billions”.

Since late 2019, Apple and Intel have pursued claims against Fortress Investment Group LLC and a variety of affiliated NPEs, arguing in part that they have violated antitrust and unfair competition laws by aggregating and asserting a “massive but obscured” patent portfolio in order to charge supracompetitive royalty rates. The plaintiffs have now filed a second amended complaint (SAC) in that case, addressing certain pleading deficiencies flagged earlier this year by Northern District of California Judge Edward Chen but also adding a variety of additional facts providing context for the defendants’ alleged anticompetitive “scheme”. Perhaps the most significant newly disclosed information pertains to the 2018 deal in which Fortress acquired the assets and monetization business of Australian NPE Uniloc Corporation Pty. Limited—including key financial terms that Fortress and Uniloc had previously fought to keep under seal in other litigation.

Fortress Investment Group LLC appears to be behind a new NPE that sued each of Apple, Dell, and LG Electronics (LGE) this past week over a range of smartphones, tablets, smartwatches, laptops, and other mobile devices. Meanwhile, public records suggest that Fortress is poised to launch another new campaign, that one involving patents from a familiar source.

Last month, District Judge William Alsup of the Northern District of California dismissed one of the many cases filed against Apple by subsidiaries of Uniloc Corporation Pty. Limited, holding that the NPE lacked standing because it had relinquished certain patent rights to funder Fortress Investment Group LLC by defaulting on a financing agreement. Judge Alsup has now dealt Uniloc another blow, in a related battle over confidentiality. After previously rejecting Uniloc’s attempt to seal a wide swath of information about its patent assertion business, Judge Alsup has ordered the NPE to disclose further information about its licenses with third parties, ruling on remand after the Federal Circuit, while largely upholding his earlier decision, directed him to revisit that issue. Meanwhile, Judge Alsup’s order on the plaintiff’s standing defects has continued to ripple through Uniloc’s other campaigns, triggering the dismissal of another set of cases, against Google.

The Northern District of California has just dismissed one (3:18-cv-00358) of the many cases filed by subsidiaries of Uniloc Corporation Pty. Limited against Apple throughout 2017 and 2018—for reasons that could ripple through the whole set of Uniloc campaigns. Uniloc has been backed by Fortress Investment Group LLC for years, the two enterprises entering into a complex set of agreements that, according to District Judge William Alsup, deprived the Uniloc subsidiaries of standing to file suit by the time that they did. Judge Alsup had considered an Apple motion challenging standing before, reaching the opposite result in 2019. In reversing course, however, the court cited two previously missing “crucial facts”, both of which contributed to a “broader error of law” in the prior ruling.