Intellectual Ventures Brings Second Patent Infringement Lawsuit Against Symantec

Patent and technology firm, Intellectual Ventures (IV), recently brought a new complaint against computer security company, Symantec, claiming that the company infringed on three of its patents.  To be specific, the complaint alleges that three of Symantec’s products (Replicator, Veritas Volume Replicator, and ApplicationHA) “actively, knowingly and intentionally” infringed on three separate IV patents.  Symantec was also sued as part of a different complaint by IV back in 2010, along with Trend Micro, McAfee, and Point Software Technologies.

The First Round

In 2010, former Microsoft exec. and IV founder, Nathan Myhrvold, brought three separate lawsuits against the three above-mentioned companies and six others, claiming that they would not sign licensing agreements, yet they continued to use IV’s patents.  Apparently IV had held out on filing the lawsuits against the companies for as long as possible, and according to the company attorney, several attempts were made to negotiate with the companies; however, the negotiations were either unsuccessful or the companies refused to talk about the situation altogether.

The three lawsuits at that time specifically covered items such as standard memory and flash memory chips, security software, and specialized chips known as “field-programmable gate array chips” that are often used in things such as cell phones, medical imaging equipment and even defense weapons.

[Patent-Litigation]

This Round

This latest lawsuit against Symantec claims infringement of the following patents: US Patent No. 5,537,533 (referred to as the ‘533 patent), US Patent No. 6,598,131 (referred to as the ‘131 patent), and US Patent No. 6,732,359 (referred to as the ‘359 patent).

With regard to the ‘533 patent, it was originally issued by the USPTO in July of 1996 for an invention called the “System and method for remote mirroring of digital data from a primary network server to a remote network server.”  IV owns the patent and holds all rights and interest in it.  The claim against Symantec is that the company’s use, sale and/or offer for sale, manufacture and importation of particular storage software products infringed on the ‘533 patent.

IV also claimed, as noted above, that Symantec “actively, knowingly and intentionally has induced and continues to actively, knowingly and intentionally induce” infringement of the ‘533 patent by using, making, offering for sale and selling its Replicator and Veritas Volume Replicator products, as well as contracting with others to market, sell and offer to sell the products, knowing that its customers will utilize such products and further facilitate such infringing sales.

The second claim that IV makes against Symantec concerns the ‘131 patent which was originally issued in July of 2003 for an invention called “Data image management via emulation of non-volatile storage device.”  The same claims that were made with respect to Symantec’s infringement of ‘533 patent were made with respect to ‘131.  Additionally, IV claims that Symantec had full knowledge of the ‘131 patent since approximately 2005 when Symantec actually referenced it in a disclosure statement that was made during the prosecution of a few of its own patent applications.  The complaint further notes that Symantec’s infringement of the ‘131 patent is “willful and deliberate” on the basis that several of its own patents point to the fact that the company knew of the ‘131 patent long before this complaint was filed–still, Symantec infringed and continues to infringe on ‘131.

Regarding the final patent at issue, the ‘359 patent, it was issued in May of 2004 for an invention that’s known as an “Application process monitor.”  Once again, the complaint claims that Symantec infringed and continues to infringe on the patent by using, selling and offering to sell certain software products, to include the company’s Application HA products.  Many of the same claims were made with regard to this patent as were made regarding ‘131 and ‘533, except this claim adds that the ApplicationHA products constitute “a material part of the ‘359 patent, knowing those products to be especially made or adapted to infringe the ‘359 patent, and knowing that those products are not staple articles or commodities of commerce suitable for substantial non-infringing use.”

IV claims that Symantec’s acts of infringement of all three patents have caused harm and damage to IV, and accordingly the company is entitled to recover an unspecified amount of money from Symantec for damages that it sustained due to its wrongful acts.  IV seeks to receive enhanced damages as well.

IV has been referred to as a huge patent troll (the company apparently has purchased about 30,000 patents in all)–in fact, some refer to them as “Intellectual Vultures.”  Still, IV’s attorney defends the company, making it clear that the lawsuits do prove a point–Intellectual Ventures will not hesitate to protect and shield its valuable intellectual property.  It bears mentioning that IV did recently reach a settlement agreement with Lattice Semiconductor, one of the manufacturers listed in the 2010 lawsuit discussed above, and the company also reached a similar settlement back in January with Microsemi, another semiconductor manufacturer for the defense, communications and aerospace industries.  Is IV a so-called “patent troll?” Maybe, maybe not.  But one thing is clear–IV seems to be getting what it wants slowly but surely–signed license agreements.