When a plaintiff needs to beat a fast retreat, Federal Rule of Civil Procedure (FRCP) 41(a)(1)(A)(i) provides an escape hatch, allowing a plaintiff (subject to other minor limitations) to “dismiss an action without a court order by filing a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment”. Such a dismissal is effective upon filing of the notice. However, using FRCP 41 in this way is not without risks. For example, on April 4, 2025, VPN Technology Holdings, LLC voluntarily dismissed an affirmative Eastern District of Texas case against IBM (Red Hat), after counsel for Red Hat identified certain noninfringement positions, but VPN Technology did so without prejudice and with a statement that it did so “while we investigate some of the points raised in your letter”. On April 10, Red Hat filed a declaratory judgment action against VPN Technology in a different court, the Eastern District of Virginia, pleading a “threat of renewed litigation”.

Last week, IBM (Red Hat) filed a declaratory judgment action (3:25-cv-00286) against inventor-controlled VPN Technology Holdings, LLC in the Eastern District of Virginia, seeking a judgment of noninfringement as to a single patent generally related to “configuring a remote computer to access a network of computers”. VPN Technology asserted the same patent against Red Hat in an Eastern District of Texas case filed this past January, with infringement allegations targeting the Red Hat Enterprise Linux Operating System; in early April, however, the NPE voluntarily dismissed the complaint (without prejudice).  

IBM (Red Hat) (2:25-cv-00085) is the latest defendant to be sued in the sole litigation campaign of VPN Technology Holdings, LLC, initiated in October 2024 with suits against Fortinet and Rubicon Communications. The sole asserted patent generally relates to “configuring a remote computer to access a network of computers”. Red Hat is accused of infringement through the provision of the Red Hat Enterprise Linux 9 operating system, with the support for “remote access VPN functionality using protocols such as IPSec and IPE” at issue.

With a December suit against Microsoft (6:24-cv-00622) in the Western District of Texas, VPN Technology Holdings, LLC has expanded the litigation campaign that it began with early October suits against Fortinet and Rubicon Communications. A single patent generally related to “configuring a remote computer to access a network of computers” is asserted against all three defendants. Microsoft is accused of infringement through the provision of the Intune cloud-based endpoint management solution, with features for allowing an “admin to configure a remote computer for a Virtual Private Network (VPN) by deploying VPN profiles” at issue.

In a Western District of Texas complaint against Fortinet (2:24-cv-00801) and an Eastern District of Texas complaint against Rubicon Communications (d/b/a Netgate) (1:24-cv-01191), Virginia plaintiff VPN Technology Holdings, LLC has asserted a single patent broadly directed to “configuring a remote computer to access a network of computers”. The respective accused products are the FortiClient platform, which allegedly features “split tunneling functionality that enables a remote user to access local network computers via the Internet” and supports the IPSEC VPN, SSL, and VPN protocols, and, for Netgate, the “pfSense” software, described as “an open-source firewall and router platform which includes integrated support for the configuration of VPN clients on the remote devices by supporting protocols such as OpenVPN, IPsec, and WireGuard”.