“In creating inter partes reviews, Congress intended to provide [a] quick and cost effective alternative[] to litigation in the courts . . . It also created an unconstitutional one” (internal citations omitted). So begins the appellate brief filed in April by Rovi Guides, Inc., a subsidiary of TiVo Corporation. Rovi has appealed (2019-1215) the cancellation of claims from one of its “remote interactive program guide” patents by the Patent Trial and Appeal Board (PTAB). The company brings a constitutional challenge to this PTAB authority, arguing that because Administrative Patent Judges (APJs) hired to adjudicate inter partes reviews (IPRs) “have the authority to render a final decision on behalf of the United States, without review by any higher executive-branch official”, they are “principal officers” who must be appointed by the US President and confirmed by the US Senate. Earlier this month, the US Department of Justice (USDOJ) filed a notice of intervention in the appeal, the Federal Circuit lifted a temporary stay to await word of the government’s intentions, and that court set a deadline for the USDOJ’s brief on the same day that the brief of appellee and IPR petitioner Comcast is due.

On November 21, the International Trade Commission (ITC) issued its final determination in the investigation that began with a complaint filed by TiVo (f/k/a Rovi Corporation) against Comcast (337-TA-1001), among others. The Commission affirmed the determination of Administrative Law Judge (ALJ) David P. Shaw that Comcast’s customers directly infringe two of TiVo’s patents, which are characterized as generally related to “interactive television guide programs that operate on local devices, such as a set-top box, and remote devices, such as a laptop or mobile phone”, thereby establishing a Section 337 violation as to Comcast’s X1 set-top boxes. The Commission issued limited exclusion and cease-and-desist orders commensurate with this conclusion, orders that would remain in place during any appeal, absent a settlement between the parties.

The Patent Trial and Appeal Board (PTAB) continued to see the filing of petitions for inter partes review (IPR) against publicly traded NPEs in March 2017, including Acacia Research Corporation; Finjan Holdings, Inc.; Pendrell Corporation; TiVo Corporation (formerly known as Rovi Corporation); and Wi-LAN Inc. (WiLAN). A variety of prolific, privately held NPEs were also targeted for IPR throughout March, including Blackbird Tech LLC, General Patent Corporation, IP Edge LLC, Realtime Data LLC, and Papst Licensing GmbH & Company Kg, along with several inventors and inventor-controlled NPEs and an assortment of other plaintiffs.

Recently formed Texas NPE Paluxy Messaging, LLC has initiated a first litigation campaign with new cases filed against 8×8 (6:16-cv-01346), Longview Cable Television (6:16-cv-01345), Nextiva (6:16-cv-01348), and ShoreTel (6:16-cv-01350). Paluxy asserts a single patent (8,411,829) generally related to a messaging system that separately transmits copies of recorded messages. The NPE accuses the defendants of infringement through provision of their voicemail services. The ‘829 patent has five named inventors, one of whom, James D. Logan, is a prolific inventor whose patents have been the subject of high-profile past litigation, including the long-running Personal Audio LLC campaign. Public filings in connection with an appeal to the New Hampshire Supreme Court from Logan’s divorce decree indicate that his now second ex-wife, Caren, has been awarded, through a separate patent stipulation, a percentage interest in Logan’s patent holdings through the companies that own them.

For the third week running, Texas-based NPE Marking Object Virtualization Intelligence, LLC (MOVI) has continued to expand its new digital rights management (DRM) campaign, filing a further seven suits against F5 Networks, Hewlett Packard Enterprise (HPE), and Trend Micro (2:16-cv-01115); Huawei (2:16-cv-01097); Kudelski (Civolution, NexGuard) (2:16-cv-01099); NEC (2:16-cv-01103); Sonus Networks (2:16-cv-01100); STMicroelectronics (2:16-cv-01113); and Xilinx (2:16-cv-01109). As in previous filings, these complaints assert various combinations of patents from a group of 17 that the NPE acquired from Rovi Corporation in July, prior to the latter’s name change to TiVo Corporation. MOVI characterizes the subject matter of the portfolio as related to DRM and digital watermarking. A variety of accused products are at issue: F5 Networks, HPE, Huawei, NEC, and Trend Micro are alleged to infringe through various types of networking hardware and software, Kudelski through its forensic watermarking (i.e. piracy tracking) software, HPE and Sonus Networks through their web-based communications software, STMicroelectronics through microcontrollers and systems-on-a-chip (SOCs), and Xilinx through its Vivado chip design software.

Texas NPE Marking Object Virtualization Intelligence, LLC (MOVI) has continued to expand its new digital rights management (DRM) campaign, filing five new lawsuits against Dell, F5 Networks, and SAP (2:16-cv-01066); First Data (2:16-cv-01062); Hitachi (2:16-cv-01055); Koninklijke Philips (2:16-cv-01061); and Symantec (2:16-cv-01056). MOVI first began filing litigation last week and has asserted various combinations of nine patents from a group of over fifteen patents that the NPE acquired from Rovi Corporation in July, prior to that company’s name change to TiVo Corporation. Others hit by MOVI’s initial wave of filings include Arista (2:16-cv-01042), ARRIS (2:16-cv-01045), Barracuda Networks (2:16-cv-01038), Cisco (2:16-cv-01040), Fujitsu (2:16-cv-01046), and SAP (also sued in the same complaint as Fujitsu). All seven new defendants have been accused of infringement through products related to enterprise networking, as in previous complaints, while First Data is also alleged to infringe through its payment terminals, Koninklijke Philips through the provision of smart TVs, and Symantec through its disk imaging software.

In July 2016, Rovi Corporation (before its name change to TiVo Corporation) assigned over 15 US patents to a new, perhaps aptly named Texas NPE Marking Object Virtualization Intelligence, LLC (MOVI), which has now filed suit. MOVI’s new complaints assert five of the assigned patents against Arista (2:16-cv-01042); five against ARRIS (2:16-cv-01045); three against Barracuda Networks (2:16-cv-01038); seven against Cisco (2:16-cv-01040); five against Fujitsu (2:16-cv-01046); and one against SAP (sued in the same complaint as Fujitsu). MOVI broadly characterizes the patents as related to digital rights management and digital watermarking, using a thesaurus of impressive adjectives (“foundational”, “breakthrough”, “fundamental”, “landmark”, “industry-leading”, “groundbreaking”, “trailblazing”, “innovative”, etc.) to describe their alleged contributions to those fields throughout the complaints, which detail the development work of Rovi’s predecessor, Macrovision. Various networking products and services offered by the defendants are the accused products.

In the first half of August 2016, RPX saw five patent transfers to NPEs recorded with the USPTO. Assignees include IP Valuation Partners LLC—affiliates of which have collectively filed nearly 50 patent infringement suits to date—and France Brevets. Also, a newly formed NPE controlled by the manager of Multiplayer Network Innovations, LLC, which in 2014-2015 sued over 25 operating companies, received a patent from Rovi Corporation.

Comcast has filed a declaratory judgment action against Rovi Corporation and three of its subsidiaries (1:16-cv-03852), a month after getting hit by Rovi with an ITC complaint and two district court lawsuits. In an action filed in the Southern District of New York, Comcast seeks a judgment of non-infringement for the fifteen Rovi patents asserted against it. The complaint also contains multiple claims for relief stemming from Rovi’s alleged breach of two choice of forum clauses contained in licensing agreements between the companies. Comcast asserts that these clauses mandated that Rovi file any actions against it in New York, which Rovi purportedly breached by filing in Texas.

This week Rovi Corporation filed two lawsuits against Comcast, the first of the so-called “Big Four” pay TV companies not to renew its license to Rovi’s patent portfolio before expiration. Investors have been watching since at least the beginning of 2015 whether DISH (Echostar), DirecTV (now owned by AT&T), Comcast, and Time Warner Cable (nearing possible acquisition by Charter) would extend or renew license agreements entered into years ago with Rovi (or its predecessors). The plaintiffs are three Rovi subsidiaries—Rovi Guides, Inc.; Rovi Technologies Corporation; and Veveo, Inc.—each of which owns some of the 14 patents-in-suit. The defendants are Comcast and DVR and set-top box manufacturers ARRIS (Pace), Humax, and Technicolor. Comcast is accused of infringement through provision of its Xfinity television products and services, including its X1 interactive program guide.