Patent Filings Roundup: NPE Targets Cracker Barrel, Realtors; VMWare/Cirba Dispute Heads to Board; Car Jumpstarter Patent Challenged; Funded Semiconductor Litigation Patents Instituted

After last week’s spike in complaints, things returned to steady-state this week, with plaintiffs filing 58 complaints and patent challengers filings 26 petitions (one post grant review [PGR] and 25 inter partes reviews [IPRs]). There were four denials under Fintiv at the Board, all related to upcoming trial dates and a stipulation the Board found fault with in Cisco Systems v. Estech. A surprising number of challenges against semiconductor-related patents being asserted by NPEs (most with litigation funding backing, such as by Starboard Value, Vector Capital, and Cambridge Partners) were instituted this week, perennial filers K.Mizra and Blue Spike had new complaints, Coinbase filed a declaratory judgment against frequent filer and NPE Modern Font Applications, and there were a number of pharmaceutical litigations initiated that bear scrutiny.

S3G Technology LLC Targets Cracker Barrel, Whataburger, Hobby Lobby on Software Update Patents: Serial litigant S3G Technology LLC has been asserting a small family of patents related to pushing software updates to connected devices against retailers since 2015. They have asserted against Whataburger, Chick-Fil-A, Keller Williams Realtors, Hobby Lobby, Vrbo, and now Cracker Barrel, among others. The complaints allege infringement based on software updates to generic apps on mobile server devices and customer devices at the restaurants, among other things.

Sprawling Cirba/VMWare Dispute Heads (in small part) to Board: Earlier this year in Cirba, Inc. (DBA Densify) and Cirba IP v. VMWare (D. Del. 2020), competitor Cirba brought VMWare to trial on two patents: 8,209,687 (the ‘687 patent) and 9,654,367 (the ‘367 patent), and awarded damages on one to the tune of $235 million. (Originally filed in Virginia, the case was transferred to Delaware and went to trial earlier this year.) VMWare filed a DJ complaint cross-asserting four patents before Judge Stark—originally before Judge Norieka—and there Cirba again counterclaimed with additional patents, including 10,523,492 (the ‘492 patent’). VMWare challenged that patent, the ‘492 patent, with a 12(c) motion on 101, which he folded into one of his en banc “101 days”, which was denied from the bench for failing to meet step 1 of the Alice analysis. Back in the original case around the same time, on the ’687 and ’367, the case proceeded and the jury awarded the judgment, just on the ’367; but in post-trial JMOL Judge Stark ruled that the plaintiff didn’t have standing in the first instance, as detailed by Professor Dennis Crouch here. The cases are now (apparently) consolidated for the second (new) trial and are ongoing. VMWare took the pause to file three challenges, two IPRs and a PGR, on the recently issued 10,951,459 Cirba patent, of similar scope and vintage. While the trial is ongoing, the standing dismissal of the judgment has been mandamused to the Federal Circuit in the interim. It will be interesting to see what the Board does with a PGR and two IPRs under their discretion.

Pilot Light Car Charger Patent Challenged: Pilot Automotive, a leader in aftermarket car parts, has been relatively pugnacious defending its market share in car battery jumpstarters over the past three years, suing at least nine competitors on a small patent portfolio of related patents, settling with them, and then moving on to the next. The most recent defendant punched back, challenging the most recently issued patent, U.S. 10,328,806. The circuitry described is relatively basic, but obviously Pilot has been using the portfolio to some effect in the market. The IPR is IPR2021-01235. 

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