Patent Filings Roundup: Third VLSI Trial on Fintiv-Denied Patents Postponed Over COVID Outbreak; Funded Single-Patent Semiconductor Campaign Files in ITC, District Courts; 225 Anonymous Platform Defendants Sued on Single Patent

My 40^th birthday this week brought another litigation explosion (I assume no causation), with 120 new suits, double the average, though a spike is common at the ends of months and quarters; the new patent filings are dominated by filings by IP Edge, DynaIP, IP Valuation, and to a far lesser extent, Leigh Rothschild’s subsidiaries. There were a typical 30 inter partes reviews (IPRs) and no discretionary denials last week, coupled with an average 79 terminations in district court. A new abbreviated new drug application (ANDA) Paragraph IV suit was launched—GE Healthcare challenging the three remaining patents over their ANDA application to bring a generic Lexiscan® drug to market, against brand Astellas and Gilead. New funded semiconductor litigation and further trial postponements in VLSI rounded out this week.

Third VLSI Trial Postponed by Plaintiff’s Counsel’s COVID Outbreak: The third Albright–held VLSI trial in the Western District of Texas (albeit in Austin) was postponed after a full day of trial when plaintiff’s counsel Irell & Manella reported that two members of their trial team had tested positive for COVID. That would slate any rescheduled trial back to at least October of 2022. Note that the patents challenged in the three trials—the first resulting in a $2.18 billion judgment, the second resulting in a total loss for the plaintiff, and now this one—were all challenged in 2020 before the PTAB, and all were denied under the then-2020 scheduled trial date for all three trials (they were scheduled for the same time). So, if the Board had instituted those trials, they would have been complete and the appeals would likely have run their course, either dropping or confirming all relevant claims and imposing estoppel on the parties. What’s clear at this point is that the primary beneficiaries of those rulings, the lawyers, have racked up tens of millions in legal fees over the course of those intervening 2+ years, with more to come. What’s less clear is why the 2020 USPTO put any stock in the clearly fictional trial dates Judge Albright couldn’t meet for one trial, much less three supposedly concurrent ones.

Funded Hilco Files Against Entire Semiconductor Industry in ITC, Plethora of District Courts: Another day, another massive funded NPE suit against the entire semiconductor industry. Perhaps fueled by Fortress IP’s success in bringing the many VLSI litigations (more below), frequent NPE Hilco [related to Hilco Merchant Banking] has filed single-patent suits against Advanced Micro Devices, Kioxia America, Qualcomm, Nvidia, Marvell, NXP, Infineon, and Socionext America in a patchwork of districts across the US, from Michigan to Massachusetts. The single patent, U.S. 7.007,259, is the iceberg that belies the thousands of patents Hilco has amassed in the Bell Semiconductor, LLC, and is another fresh wave of suits on top of earlier suits by Hilco against Broadcom and others. Domestic industry in the International Trade Commission (ITC) appears to be pled through Broadcom as a (likely unwilling) licensee related to the earlier litigation and settlement.

The earlier litigations (also with ITC filings) targeted BBK Electronics, BLU Products, Lenovo, OnePlus, Sonim, Commscope, Apple, Dell, ARRIS, Ruckus Wireless, Huawei Kyocera, LG Electronics, and Samsung.

Hilco, for its part, is run by Hilco Patent Acquisition 56, LLC; Hilco IP Merchant Capital, LLC, and former Ocean Tomo and Rockstar licensors out of Chicago. Records indicate that Cortland Capital Market Services is funding the campaign.

Two Hundred and Twenty-Five Anonymous Platform Sellers Sued for Patent Infringement: In something common in the trademark counterfeiting context but rare in patents, plaintiff Brunett Esnard IP LLC has sued 225 anonymous parties—John and Jane Does—in the Northern District of Illinois for patent infringement of an electric shaver. It seeks the same type of temporary restraining order and freezing of bank accounts associated with platform sellers on eBay, Wish, and Amazon, among others. The Northern District of Illinois has been relatively liberal in granting such TROs over counterfeit trademark claims in recent years, recognizing that platform sales (generally originating in China) are ephemeral and almost impossible to recover against absent frozen bank accounts.

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