Patent Filings Roundup: WSOU Targets Hewlett-Packard Inc., HPE; PTAB Skips Maxell IPRs; Drone Maker Files Against Daedalus Blue

Even patent litigants take vacations (or staycations, this year). Whether it’s because it’s August and the temperatures were topping 90 degrees in the District, or because lawyers were busy juggling the start of the grand remote learning experiment as the school year started, patent filings were at their lowest in months—with just 39 new district court complaints (a number itself propped up by a slew of new WSOU complaints, adding HP Inc. and HPE to the ever-growing party) and 28 new Patent Trial and Appeal Board (PTAB) filings, a number of which were filed by drone company DJI against a tranche of IBM-originating patents.

Sprawling WSOU Campaign adds HP Inc., HPE: What is litigious, sues on dozens of disparate patents, and has over 4,000 Nokia/Alcatel-Lucent patents at its command? If you guessed the WSOU entities, you’d be right. They have continued their strategy of filing 10-12 district court complaints in a single court against a single large defendant, not repeating any patents, and serially doing so against different entities. WSOU, which was formed after purchasing a portfolio of over 4,000 former Nokia assets, has sued American companies Dell (EMC), Microsoft, HP Inc., HP Enterprise, and Google, as well as Chinese companies ZTE and Huawei, and has now contributed 112 complaints this year alone to the District Court docket, primarily in the Western District of Texas.

Maxell (Hitachi) Gets a Discretionary Denial Assist: Maxell (Hitachi) has for years been launched a series of complaints over the years against companies like Fandango, Blackberry, BLU, CinemaNow, ASUSTek, Olympus, ZTE, and Hisense (the Chinese television manufacturer), culminating in a district court suit in the Eastern District of Texas filed in 2019 against Apple, and just recently, a brand-new International Trade Commission (ITC) complaint /Western District combo, filed just this month, also against Apple, on five different but related patents. That ITC case has (clearly) yet to be instituted. On the other patents from the earlier suit, Apple filed challenges well within the one-year statutory time bar.

Apple filed IPRs IPR2020-00407, 408, and 409 respectively challenging claims of U.S. Patent 6,748,317 (a continuation of the ’999 patent), U.S. Patent No. 6,430,498 (a parent of the ‘999), and the ‘999 patent itself (6,580,999). Nonplussed, the Board denied all three under their NHK Spring/Fintiv factors. There, Judge Gilstrap had set and once moved a trial date to December of this year—four months from now—and refused to stay the case.

The Board found the grounds were similar and credited the trial date. Apple made extensive arguments regarding why the Board should not exercise its discretion that did not fall under the first five Fintiv factors, but were rather “other considerations”; the Board ignored them, saying this:

Petitioner also presents extensive policy arguments against the Board’s application of Fintiv and NHK in determining whether to exercise discretion to deny institution under 35 U.S.C. § 314(a). Pet. Reply 1–7. We need not address these arguments, as the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office has designated Fintiv and NHK precedential decisions of the Board.

The Drone that Flew Too Close to the Sun: Drone maker and behemoth company DJI has struck back at the Daedalus Blue suit filed against it earlier this year. Recall that the Daedalus Group LLC—which Ed Gomez runs—was transferred a substantial portfolio of IBM patents at the end of last year just prior to IBM’s (hence the Blue) joining LOT Network and thus preventing the rest of their portfolio from being licensed to NPEs. DJI (a Chinese company), was sued in the Western District of Texas at the end of January. Daedalus Blue LLC v. SZ DJI Technology Co., Ltd., & DJI Europe B.V., No. 6:20-cv-00073 (W.D. Texas Jan. 31, 2020). Through the European subsidiary, DJI has now filed three IPRs this week. Recall also that Daedalus was Icarus’ father and he built his wax wings, making the whole dispute rich with irrelevant symbolism. It’s also worth noting that DJI zoomed to file, getting on file six and half months after suit; nonetheless, while no trial date has yet been set, Markman is scheduled for January 7, 2021, putting the target trial date a year later in January 2022; should that materialize and not be otherwise delayed, the Board’s FWD would come just after trial, absent a stay or delay of the underlying proceedings.

Image Source: Deposit Photos
Author: gustavofrazao
ID: 84015320