A periodic review of recently filed complaints has value for IP litigators.
The post One Day, Many Complaints appeared first on Above the Law.
In last week’s column, I expressed my interest in doing a review of all patent complaints filed on a particular day. For what purpose? I believe it is important for active litigators and counselors to maintain “a sense of what types of cases are being filed right now,” so that they can offer timely and effective advice to their clients about the ongoing patent litigation landscape. Developing that sense requires an investment of time, of course, in terms of monitoring complaint filings. Numerous resources are available for making that task easier, from RPX’s daily email to Docket Navigator’s daily docket report, as just a few examples. At a minimum, it is good to scan the list of filed cases, so as to see whether any new cases may have an impact on one or more of your existing clients. Even better is to pick a few complaints of interest and actually read them. For the purposes of this column, I will take my own advice and scan through the list of filed cases on a given day — in this case, those listed in Docket Nav’s Docket Report email on Thursday, March 28, 2024 — while also picking a few complaints to review in greater detail.
I can start with some high-level observations based on the complaints Docket Nav listed on our date of interest. In total, there were eight complaints, with all but one filed on the day before, March 27, 2024. Two of the eight were pharma matters brought under the Hatch-Waxman Act, with those two cases the only ones with Biglaw firms representing the plaintiffs. Unsurprisingly, each of those cases were filed in the pharma patent hotbeds of New Jersey and Delaware, respectively. As for Delaware, it was one of two courts to have more than one case filed there that day, with the second case filed by a very prolific (over 100 cases filed!) NPE called Patent Armory.
The other district with two cases filed was the NDIL, which saw two design patent Schedule A cases filed against various Chinese entities. (I may have more to say about those types of cases in a future column.) In addition to those cases, the other filings included a SDCA competitor case (roof flashing) and one case each filed in the ever-popular EDTX and WDTX, with the latter case representing the fifth assertion against a bank by the plaintiff since March of last year. As for the EDTX case, it also featured an active plaintiff, asserting multiple patents around smartwatch technology against its third target in about a year. Both of the Texas lawsuits were filed by well-known plaintiff-side patent law firms.
As should be clear from our high-level recap, that one day of filing activity illustrates a lot of the trends around modern patent litigation. From Texas cases continuing assertion campaigns against multiple targets using multiple patents — all hallmarks of funded campaigns — to typical-looking pharma Paragraph IV actions, it seems pretty clear which are the high-value cases on the day’s docket. But those cases were also supplemented with what looks like a typical NPE volume approach type of assertion involving a single patent, as well as a competitor case involving two smaller entities. While those cases might not last as long or be worth as much, they are, doubtlessly, important to the parties involved, on top of being illustrative of two continued trends in today’s patent ecosystem. Add in the two design patent cases targeting online infringement by Chinese companies selling to U.S. customers, and the day’s filings provide a well-rounded view of what types of economic activity drives patent assertion nowadays.
To wrap up this review, I’d like to zoom in on the differences between the Delaware filing by Patent Armory and the EDTX filing by Slyde Analytics LLC. The Delaware case involves a single patent, which was assigned to Patent Armory in the late spring of 2023. The patent was quickly put to work, with assertions against five targets by the end of 2023, to go with the four cases already filed this year. Of those cases, it looks like Patent Armory has already gotten one settlement in hand. In the newly filed case, defendant WillowWood’s Omega 3D scanner is accused of infringement, as the asserted patent is directed to methods for “wireless, non-contact mensuration of the surface shape of a three-dimensional object.” Given these parameters, my working assumption is that this is a case that will either settle pretty quickly or see one of the defendants try to IPR the asserted patent. It may come down to the relative costs of each approach, but this case is a pretty textbook example of quick-hitting patent assertion in action.
In contrast, the Slyde Analytics EDTX case presents a slightly different picture. For one, it involves no less than nine asserted patents, each directed to different smartwatch functionalities. Those patents include at least one patent issued just this year, which suggests a considered effort by the plaintiff to buttress its portfolio for assertion using open continuation applications. Continuing the theme of diversification is the fact that the asserted patents issued from a number of original applicant companies, though it has been reported that ex-Intellectual Ventures employees are affiliated with the plaintiff, suggesting that the bulk of the patents were sourced from IV at some point in the recent past. Likewise, it has also been reported that the case is funded. In fact, Slyde is already facing multiple IPRs filed against it by Samsung, which Slyde sued in a separate EDTX case in 2023. While matters are still in a preliminary stage, it is interesting to see what features a purportedly funded case contains, such as: 1.) multiple patents targeting multiple functionalities on the accused devices, 2.) sourced from different entities, 3.) multiple targets for the assertion, 4.) continued prosecution activity to try to add new patents to the campaign, 5.) adding new asserted patents to a set already previously asserted but now challenged in IPR, and 6.) an EDTX filing using counsel known for handling funded cases. A heady mix, for sure, but also indicative of how many elements need to come together to garner funder support for a patent campaign in this age of Alice and IPR.
Ultimately, I continue to believe that a periodic review of recently filed complaints has value for IP litigators. Hopefully, you have enjoyed this look at just one day’s reported activity and at least have an enhanced appreciation for the diverse types of patent cases that get filed nationwide. One day, many complaints — best of luck to each of the litigants.
Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.
Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.
