One Day, Many Complaints – Above the Law

In final week’s column, I expressed my curiosity in doing a assessment of all patent complaints filed on a specific day. For what goal? I consider it will be significant for lively litigators and counselors to take care of “a way of what forms of instances are being filed proper now,” in order that they will provide well timed and efficient recommendation to their purchasers in regards to the ongoing patent litigation panorama. Growing that sense requires an funding of time, in fact, when it comes to monitoring criticism filings. Quite a few assets can be found for making that activity simpler, from RPX’s every day electronic mail to Docket Navigator’s every day docket report, as only a few examples. At a minimal, it’s good to scan the listing of filed instances, in order to see whether or not any new instances might have an effect on a number of of your present purchasers. Even higher is to select a couple of complaints of curiosity and truly learn them. For the needs of this column, I’ll take my very own recommendation and scan by way of the listing of filed instances on a given day — on this case, these listed in Docket Nav’s Docket Report electronic mail on Thursday, March 28, 2024 — whereas additionally choosing a couple of complaints to assessment in higher element.

I can begin with some high-level observations based mostly on the complaints Docket Nav listed on our date of curiosity.  In complete, there have been eight complaints, with all however one filed on the day earlier than, March 27, 2024. Two of the eight had been pharma issues introduced beneath the Hatch-Waxman Act, with these two instances the one ones with Biglaw companies representing the plaintiffs. Unsurprisingly, every of these instances had been filed within the pharma patent hotbeds of New Jersey and Delaware, respectively. As for Delaware, it was certainly one of two courts to have a couple of case filed there that day, with the second case filed by a really prolific (over 100 instances filed!) NPE known as Patent Armory.

The opposite district with two instances filed was the NDIL, which noticed two design patent Schedule A instances filed towards numerous Chinese language entities. (I could have extra to say about these forms of instances in a future column.) Along with these instances, the opposite filings included a SDCA competitor case (roof flashing) and one case every filed within the ever-popular EDTX and WDTX, with the latter case representing the fifth assertion towards a financial institution by the plaintiff since March of final yr. As for the EDTX case, it additionally featured an lively plaintiff, asserting a number of patents round smartwatch expertise towards its third goal in a few yr. Each of the Texas lawsuits had been filed by well-known plaintiff-side patent regulation companies.

As must be clear from our high-level recap, that at some point of submitting exercise illustrates a whole lot of the tendencies round trendy patent litigation. From Texas instances persevering with assertion campaigns towards a number of targets utilizing a number of patents — all hallmarks of funded campaigns — to typical-looking pharma Paragraph IV actions, it appears fairly clear that are the high-value instances on the day’s docket.  However these instances had been additionally supplemented with what seems to be like a typical NPE quantity strategy sort of assertion involving a single patent, in addition to a competitor case involving two smaller entities. Whereas these instances may not final as lengthy or be value as a lot, they’re, doubtlessly, essential to the events concerned, on high of being illustrative of two continued tendencies in at present’s patent ecosystem. Add within the two design patent instances concentrating on on-line infringement by Chinese language firms promoting to U.S. clients, and the day’s filings present a well-rounded view of what forms of financial exercise drives patent assertion these days.

To wrap up this assessment, I’d wish to zoom in on the variations between the Delaware submitting by Patent Armory and the EDTX submitting by Slyde Analytics LLC. The Delaware case includes a single patent, which was assigned to Patent Armory within the late spring of 2023. The patent was rapidly put to work, with assertions towards 5 targets by the tip of 2023, to go along with the 4 instances already filed this yr. Of these instances, it seems to be like Patent Armory has already gotten one settlement in hand. Within the newly filed case, defendant WillowWood’s Omega 3D scanner is accused of infringement, because the asserted patent is directed to strategies for “wi-fi, non-contact mensuration of the floor form of a three-dimensional object.” Given these parameters, my working assumption is that this can be a case that may both settle fairly rapidly or see one of many defendants attempt to IPR the asserted patent. It could come right down to the relative prices of every strategy, however this case is a reasonably textbook instance of quick-hitting patent assertion in motion.

In distinction, the Slyde Analytics EDTX case presents a barely completely different image. For one, it includes a minimum of 9 asserted patents, every directed to completely different smartwatch functionalities. These patents embody a minimum of one patent issued simply this yr, which suggests a thought of effort by the plaintiff to buttress its portfolio for assertion utilizing open continuation functions. Persevering with the theme of diversification is the truth that the asserted patents issued from numerous unique applicant firms, although it has been reported that ex-Mental Ventures workers are affiliated with the plaintiff, suggesting that the majority of the patents had been sourced from IV in some unspecified time in the future within the latest previous. Likewise, it has additionally been reported that the case is funded. In actual fact, Slyde is already going through a number of IPRs filed towards it by Samsung, which Slyde sued in a separate EDTX case in 2023. Whereas issues are nonetheless in a preliminary stage, it’s fascinating to see what incorporates a purportedly funded case comprises, resembling: 1.) a number of patents concentrating on a number of functionalities on the accused gadgets, 2.) sourced from completely different entities, 3.) a number of targets for the assertion, 4.) continued prosecution exercise to attempt to add new patents to the marketing campaign, 5.) including new asserted patents to a set already beforehand asserted however now challenged in IPR, and 6.) an EDTX submitting utilizing counsel recognized for dealing with funded instances. A heady combine, for positive, but additionally indicative of what number of parts want to come back collectively to garner funder assist for a patent marketing campaign on this age of Alice and IPR.

Finally, I proceed to consider {that a} periodic assessment of lately filed complaints has worth for IP litigators. Hopefully, you’ve loved this have a look at simply at some point’s reported exercise and a minimum of have an enhanced appreciation for the various forms of patent instances that get filed nationwide. At some point, many complaints — better of luck to every of the litigants.

Please be at liberty to ship feedback or inquiries to me at gkroub@kskiplaw.com or by way of Twitter: @gkroub. Any matter options or ideas are most welcome.

Gaston Kroub lives in Brooklyn and is a founding associate of Kroub, Silbersher & Kolmykov PLLC, an mental property litigation boutique, and Markman Advisors LLC, a number one consultancy on patent points for the funding group. Gaston’s follow focuses on mental property litigation and associated counseling, with a robust concentrate on patent issues. You possibly can attain him at gkroub@kskiplaw.com or observe him on Twitter: @gkroub.