In mid-April, an Eastern District of Texas jury returned a verdict awarding G+ Communications LLC $142M in a damages retrial against Samsung before Chief Judge Rodney Gilstrap: $61M for the infringement of one former ZTE patent and $81M of another. Now, in an inter partes review (IPR) triggered by a petition filed by Samsung based on the disclosure of an LG Electronics (LGE) patent, the PTAB has canceled a set of claims from that second patent that includes claim 20, the one found infringed by the East Texas jury. In parallel, the Patent Office, also last week, in an ex parte reexamination (EPR) found the infringed claims of the second patent to be obvious on multiple grounds, including a single-reference challenge based on an application associated with another LGE patent.

In late January 2024, an Eastern District of Texas jury returned a $62.5M verdict in G+ Communications LLC’s case against Samsung, finding infringement for two of three asserted patents—and characterizing those damages as a running royalty, as opposed to a lump sum. However, in early March, Chief Judge Rodney Gilstrap vacated the damages award and ordered a retrial on that issue for the two infringed patents, finding that the jury had “probably” been confused on the difference between those two types of damages because neither party had discussed this distinction at trial. Now, a second jury has returned a new verdict on damages, this one totaling $142M.

Eastern District of Texas Chief Judge Rodney Gilstrap has ordered a new trial on damages in G+ Communications LLC’s case against Samsung. On January 26, 2024, a jury found that Samsung infringed two G+ patents, awarding $45M in damages for one and $22.5M in damages for the other and characterizing the amounts—on the verdict form—as a running royalty, as opposed to a lump sum. This question was placed on the verdict form upon the court’s suggestion after the close of evidence, during the charge conference, to avoid what the court characterized as “a guaranteed ‘train wreck’”. Now, the damages issue must go back to a second jury to clean things up.

An Eastern District of Texas jury has returned a verdict of infringement for G+ Communications LLC in litigation against Samsung, finding that the defendant infringed two wireless networking patents, but not a third, through the provision of smartphones and tablets with 5G connectivity. The verdict included a damages award totaling $67.5M as a running royalty. The jury also determined that the noninfringed patent was also “well-understood, routine, and conventional”, potentially teeing up a posttrial ruling of ineligibility under Alice. Additionally, the jury concluded that neither party had breached their FRAND (fair, reasonable, and nondiscriminatory) licensing obligations with respect to negotiations over the asserted patents, each declared essential to the 5G standard. District Judge Rodney Gilstrap had addressed multiple FRAND issues in rulings leading up to and during the trial—most recently, interpreting French law, in part, as establishing that while the FRAND commitment is irrevocable, it may also be suspended due to the conduct of either the patent owner or the implementer.

Per Eastern District of Texas Chief Judge Rodney Gilstrap, “applicable French law—consistent with American principles regarding personal property—does not, in this case, allow imputation of a prior patent owner’s conduct to a subsequent owner when determining if the subsequent owner has breached the FRAND commitment regarding standard essential patents (SEPs)”. “This case” is the litigation brought by G+ Communications LLC against Samsung, in which ZTE, the source of the patents-in-suit retains a 20% stake. At the impending trial, Samsung sought to introduce evidence of alleged “FRAND misconduct” by ZTE in support of a breach of FRAND counterclaim. Judge Gilstrap has said that such evidence cannot be introduced to the jury—but it can be to combat a charge of willful infringement. G+ promptly withdrew its willfulness claims.

Late last month, Eastern District of Texas Chief Judge Rodney Gilstrap denied a motion to continue trial between G+ Communications LLC and Samsung, currently set to begin at the end of January 2024. Samsung requested the continuation given scheduling conflicts with two of its witnesses, but Judge Gilstrap noted that trial has twice been postponed and that the defendant failed to raise any objection to the January start date at the last pretrial conference. Per the court, “[t]his case will proceed to trial in the January 22nd trial term” (emphasis the court’s). That pretrial conference focused, at least in part, on whether alleged “FRAND misconduct” of ZTE, the source of the patents here in suit, can be imputed to the plaintiff. Judge Gilstrap ordered supplemental briefing, which the parties have submitted, right through the last day of 2023.

In late 2020, RPX flagged the movement of a portfolio of patents from ZTE to a newly formed Texas NPE with apparent ties to a familiar name in patent monetization. Now, 18 months later, that NPE has filed its first US suit to date—and with public records signaling the involvement of a prominent litigation funder.

As extensively reported by RPX, the acquisition and assertion of operating company patents by NPEs remained a significant driver of litigation throughout 2020. Be prepared for this long-term trend to possibly accelerate as a result of the COVID-19 recession. If past is prologue, the current financial crisis will likely be followed by years of increased patent divestments by operating companies—including to NPEs.