NPEs stayed busy entering the fourth quarter. Frequent filers included AlexSam, Consolidated Transaction Processing, Cascades Branding, Devine Licensing, Express Mobile, Geographic Location Innovations, Guada Technologies, and Symbology.

As usual, I prepared the report in partnership with and using Docket Navigator and its powerful database.  Docket Navigator is a valuable resource, and the place to go if you want to keep track of new patent litigation filings or want to know what is happening in particular cases, how your judge has historically handled a particular type of motion, or a particular plaintiff’s litigation history.  Finally, please let me know if you have thoughts about the report or changes you would like to see.  I am preparing it as a service for retailers and their supply chain who may want an overview of the patent litigation landscape.  So, I am very open to your suggestions for improving the report.

Symbology Innovations, LLC v. Bloomin’ Brands, Inc. (M.D. Fla., S.D. Fla., S.D. of Tex.).

Judges:           District Judge Steven D. Merryday; Magistrate Judge Julie S. Sneed; District Judge Donald M. Middlebrooks; Magistrate Judge Dave Lee Brannon

Claims:          Infringement

Defendants:  

  • Bloomin’ Brands, Inc.
  • Night Owl SP, LLC
  • Firstline Manufacturing, Corp.

Plaintiff:        Symbology Innovations, LLC

Pls. Cnsl:        Sand Sebolt & Wernow

Patent:           8,424,752 (System and method for presenting information about an object on a portable electronic device)

Proxense, Inc. v. CVS Health Corporation (N.D. Ill.) (multiple cases) (N.D. Ill.).            

Claims:          Infringement

Defendants:

  • CVS Health Corporation
  • Walmart Inc. f/k/a Wal-Mart Stores, Inc.

Plaintiff:        Proxense, Inc.

Pls. Cnsl:        McCaulley Dowell

Patent:           8,340,672 (Wireless network synchronization of cells and client devices on a network)

Be TopNotch Wyoming, LLC v. My Wedding Workbook, LLC d/b/a Planning Pod (D. Colo.).

Claims:          Infringement

Defendant:     My Wedding Workbook, LLC d/b/a Planning Pod

Plaintiff:        Be TopNotch Wyoming, LLC

Pls. Cnsl:        Chavous Intellectual Property Law

Patent:           9,373,104 (Assign photographers on an event invite and automate requesting, uploading, and sharing of photos and videos for an event)

Consolidated Transaction Processing LLC v. Costco Wholesale Corporation, et al. (multiple cases) (D. Del.).

Claims:          Infringement

Defendants:

  • Costco Wholesale Corporation
  • Ford Motor Company
  • The Home Depot, Inc.
  • JC Penney Company, Inc.
  • Lowe’s Companies, Inc.

Plaintiff:        Consolidated Transaction Processing LLC

Pls. Cnsl:        Devlin Law Firm

Patents:          8,396,743 (Sending targeted product offerings based on personal information); and 8,712,846 (Sending targeted product offerings based on personal information)

Express Mobile, Inc. v. Wix.com, Ltd. et al. (N.D. Cal.).

Claims:          Infringement

Defendants:

  • com, Inc.
  • com Ltd.

Plaintiff:        Express Mobile, Inc.

Pls. Cnsl:        Devlin Law Firm; Steptoe & Johnson

Patents:          6,546,397 (Browser based web site generation tool and run time engine); 7,594,168 (Browser based web site generation tool and run time engine); 9,063,755 (Systems and methods for presenting information on mobile devices); 9,471,287 (Systems and methods for integrating widgets on mobile devices); and 9,928,044 (Systems and methods for programming mobile devices)

AlexSam, Inc. v. Simon Property Group, LP (E.D. Tex.).

Judge:            District Judge Rodney Gilstrap

Claims:          Infringement

Defendant:     Simon Property Group, LP

Plaintiff:        AlexSam, Inc.

Pls. Cnsl:        Heninger Garrison Davis; Insight

Patent:           6,000,608 (Multifunction card system)

Cascades Branding Innovation LLC v. Ace Hardware Corporation (N.D. Ill.).

Judge:            District Judge Andrea R. Wood

Claims:           Infringement

Defendant:     Ace Hardware Corporation

Plaintiff:        Cascades Branding Innovation LLC

Pls. Cnsl:        Flachsbart & Greenspoon

Patents:          7,768,395 (Brand mapping); 8,106,766 (Brand mapping); and 8,405,504 (Brand mapping)

Scanning Technologies Innovations LLC v. Shopkeep, Inc. (D. Del.).

Claims:           Infringement

Defendant:     Shopkeep, Inc.

Plaintiff:        Scanning Technologies Innovations LLC

Pls. Cnsl:        Stamoulis & Weinblatt

Patent:           9,934,528 (Systems and methods for indicating the existence of accessible information pertaining to articles of commerce)

Geographic Location Innovations LLC v. Juno USA, LP (multiple cases) (D. Del.).

Claims:          Infringement

Defendants:

  • Juno USA, LP
  • Mobike, Inc.
  • Via Transportation, Inc.

Plaintiff:         Geographic Location Innovations LLC

Pls. Cnsl:        Stamoulis & Weinblatt

Patent:           7,917,285 (Device, system and method for remotely entering, storing and sharing addresses for a positional information device)

Devine Licensing LLC v. Penske Truck Leasing Co., LP (E.D. Pa.).

Judges:           District Judge Michael M. Baylson

Claims:          Infringement

Defendant:     Penske Truck Leasing Co., LP

Plaintiff:        Devine Licensing LLC

Pls. Cnsl:        Stamoulis & Weinblatt; Rabicoff Law

Patent:           6,339,769 (Query optimization by transparently altering properties of relational tables using materialized views)

Driessen v. Walmart Inc. f/k/a Wal-Mart Stores, Inc. (D.D.C).

Judge:            District Judge Emmet G. Sullivan

Claims:          Infringement

Defendant:     Walmart Inc. f/k/a Wal-Mart Stores, Inc.

Plaintiff:        James L. Driessen

Pls. Cnsl:        James L Driessen (pro se)

Patent:           10,304,052 (Retail point of sale (RPOS) apparatus for internet merchandising)

Guada Technologies LLC v. Dupont De Nemours, Inc. (D. Del.).

Claims:          Infringement

Defendants:  

  • Dupont De Nemours, Inc.
  • Munchkin, Inc.
  • Newell Brands Inc.

Plaintiff:        Guada Technologies LLC

Pls. Cnsl:        Direction IP Law; Stamoulis & Weinblatt

Patent:           7,231,379 (Navigation in a hierarchical structured transaction processing system)

 

September patent filings increased from the summer months, as they usually do. Kids go back to school, adults wrap up summer vacations and NPEs get back to filing suits.. Frequent filers included Billingnetwork Patent, Consolidated Transaction Processing, Geographic Location Innovations, Guada Technologies, Interface IP Holdings, Internet Media Interactive, Modern Font Applications, and Symbology.

As usual, I prepared the report in partnership with and using Docket Navigator and its powerful database.  Docket Navigator is a valuable resource, and the place to go if you want to keep track of new patent litigation filings or want to know what is happening in particular cases, how your judge has historically handled a particular type of motion, or a particular plaintiff’s litigation history.  Finally, please let me know if you have thoughts about the report or changes you would like to see.  I am preparing it as a service for retailers and their supply chain who may want an overview of the patent litigation landscape.  So, I am very open to your suggestions for improving the report.

Interface IP Holdings LLC v. Public Joint Stock Company, Aeroflot – Russian Airlines (W.D. Tex.).

Judge:          District Judge Alan D. Albright

Claims:         Infringement

Defendant: Public Joint Stock Company, Aeroflot – Russian Airlines

Plaintiff:      Interface IP Holdings LLC

Pls. Cnsl:     Law Offices of Bradford Black; Olavi Law

Patents:       7,406,663 (Graphical input device with dynamic field width adjustment for input of variable data via a browser-based display); 7,500,201 (Data input method and system with multi-sub-field matching of user entries into a graphical input device).

Modern Font Applications LLC v. PetSmart, Inc. (D. Utah).

Judges:        Magistrate Judge Cecilia M. Romero; Magistrate Judge Dustin B. Pead

Claims:         Infringement

Defendants:          

  • PetSmart, Inc.
  • Domino’s Pizza, LLC

Plaintiff:      Modern Font Applications LLC

Pls. Cnsl:     Kunzler Bean & Adamson

Patent:         9,886,421 (Allowing operating system access to non-standard fonts in a network document)

Proxense, Inc. v. Macy’s, Inc. (N.D. Ill.).

 Judge:          District Judge Virginia M. Kendall

Claims:         Infringement

Defendant: Macy’s, Inc.

Plaintiff:      Proxense, Inc.

Pls. Cnsl:     McCaulley Dowell

Patent:         8,340,672 (Wireless network synchronization of cells and client devices on a network)

Symbology Innovations, LLC v. Nabisco, Inc. (D. Del.).

Claims:        Infringement

Defendant: Nabisco, Inc.

Plaintiff:      Symbology Innovations, LLC

Pls. Cnsl:     Sand Sebolt & Wernow; Stamoulis & Weinblatt

Patent:         8,424,752 (System and method for presenting information about an object on a portable electronic device)

realZOOM LLC v. Sephora USA, Inc. (E.D. Tex.).

Claims:         Infringement

Defendant: Sephora USA, Inc.

Plaintiff:      realZOOM LLC

Pls. Cnsl:     SML Avvocati

Patent:         7,774,712 (Methods and systems for displaying an enlarged image)

Geographic Location Innovations LLC v. Kydia Inc. d/b/a Beyondmenu (multiple cases) (N.D. Ill.).

Claims:        Infringement

Defendants:

  • Kydia Inc. d/b/a Beyondmenu
  • GrubHub, Inc.

Plaintiff:      Geographic Location Innovations LLC

Pls. Cnsl:     Rabicoff Law

Patent:         7,917,285 (Device, system and method for remotely entering, storing and sharing addresses for a positional information device)

Internet Media Interactive Corp. v. Shutterfly, Inc. (S.D.N.Y., S.D. Fla.).

 Judges:        District Judge Robin L. Rosenberg; Magistrate Judge Bruce E. Reinhart

Claims:        Infringement

Defendants:          

  • Shutterfly, Inc.
  • Trans Union LLC

Plaintiff:      Internet Media Interactive Corp.

Pls. Cnsl:     Haller Law

Patent:         6,049,835 (System for providing easy access to the World Wide Web utilizing a published list of preselected Internet locations together with their unique multi-digit jump codes)

Consolidated Transaction Processing LLC v. Amazon.com, Inc. (D. Del.).

Claims:         Infringement

Defendant: Amazon.com, Inc.

Plaintiff:      Consolidated Transaction Processing LLC

Pls. Cnsl:     Devlin Law Firm

Patents:       8,374,956 (Internet transactions based on user-specific information); 8,396,743 (Sending targeted product offerings based on personal information); 8,533,047 (Internet business transaction processor); 8,712,846 (Sending targeted product offerings based on personal information); 8,775,255 (Internet business transaction processor)

Billingnetwork Patent, Inc. v. Zoho Corporation (N.D. Cal., C.D. Cal.).

Claims:         Infringement

Defendant:

  • Zoho Corporation
  • Onward Systems, Inc.

Plaintiff:      Billingnetwork Patent, Inc.

Pls. Cnsl:     Noble IP; Haller Law; Law Offices of Marc Libarle

Patent:         6,374,229 (Integrated internet facilitated billing, data processing and communication system)

Guada Technologies LLC v. Deere & Company (D. Del.).

Claims:         Infringement

Defendant: Deere & Company

Plaintiff:      Guada Technologies LLC

Pls. Cnsl:     Direction IP Law; Stamoulis & Weinblatt

Patent:         7,231,379 (Navigation in a hierarchical structured transaction processing system)

Digi Portal LLC v. Redfin Corporation, et al. (multiple cases) (D. Del.).

Claims:         Infringement

Defendants:

  • Redfin Corporation
  • Zomato USA, LLC
  • TripAdvisor, Inc.

Plaintiff:      Digi Portal LLC

Pls. Cnsl:     Direction IP Law; Stamoulis & Weinblatt

Patents:       5,983,227 (Dynamic page generator); 7,171,414 (Dynamic page generator); 7,565,359 (Dynamic page generator); 8,352,854 (Dynamic page generator); 9,626,342 (Dynamic page generator)

S3G Technology LLC v. RE/MAX, LLC (E.D. Tex.).

Judge:          District Judge Sean D. Jordan

Claims:         Infringement

Defendant: RE/MAX, LLC

Plaintiff:      S3G Technology LLC

Pls. Cnsl:     Parker Bunt & Ainsworth

Patents:       10,261,774 (Modification of terminal and service provider machines using an update server machine); 8,572,571 (Modification of terminal and service provider machines using an update server machine); 9,081,897 (Modification of terminal and service provider machines using an update server machine); 9,304,758 (Modification of terminal and service provider machines using an update server machine); 9,940,124 (Modification of terminal and service provider machines using an update server machine)

Saros Licensing LLC v. The Coca-Cola Company (D. Del.).

Claims:         Infringement

Defendant: The Coca-Cola Company

Plaintiff:      Saros Licensing LLC

Pls. Cnsl:     Stamoulis & Weinblatt; Rabicoff Law

Patent:         6,480,753 (Communications, particularly in the domestic environment)

Helios Streaming, LLC et al v. Crackle, Inc. et al. (D. Del.).

Claims:        Infringement

Defendants:

  • Chicken Soup for the Soul Entertainment, Inc.
  • Crackle, Inc.
  • Crackle Plus, LLC
  • Sony Pictures Entertainment, Inc.
  • Sony Pictures Television Inc.

Plaintiffs:

  • Helios Streaming, LLC
  • Ideahub, Inc.

Pls. Cnsl:     Devlin Law Firm

Patents:       10,270,830 (Apparatus and method for providing streaming content using representations); 10,277,660 (Apparatus and method for providing streaming content); 10,313,414 (Apparatus and method for providing streaming content using representations); 10,356,145 (Method and device for providing streaming content); 10,362,130 (Apparatus and method for providing streaming contents); 10,375,373 (Method and apparatus for encoding three-dimensional (3D) content); 8,645,562 (Apparatus and method for providing streaming content); 8,909,805 (Apparatus and method for providing streaming content); 9,325,558 (Apparatus and method for providing streaming contents); 9,467,493 (Apparatus and method for providing streaming content)

August patent filings stayed consistent with June and July in the retail space, as opposed to the usual summer slowdown. Frequent filers included Aeritas, Consolidated Transaction Processing, Digi Portal, Display Technologies, Internet Media Interactive, Intertrust Technologies, Modern Font Applications, Landmark Technology, Sonohm Licensing, Symbology, Transaction Secure and WordLogic.

Continue Reading August 2019 Retail Patent Litigation Report

June patent filings saw an uptick in the retail space. Frequent filers included Aeritas, Internet Media Interactive, Secure Cam, and Symbology.

As usual, I prepared the report in partnership with and using Docket Navigator and its powerful database.  Docket Navigator is a valuable resource, and the place to go if you want to keep track of new patent litigation filings or want to know what is happening in particular cases, how your judge has historically handled a particular type of motion, or a particular plaintiff’s litigation history.  Finally, please let me know if you have thoughts about the report or changes you would like to see.  I am preparing it as a service for retailers and their supply chain who may want an overview of the patent litigation landscape.  So, I am very open to your suggestions for improving the report.

Continue Reading June 2019 Retail Patent Litigation Report

My partner Anthony Fuga is providing excellent analysis on the latest Section 101 cases and issues at the Holland & Knight Section 101 Blog, which he edits and does a substantial amount of the writing for. His latest post provides valuable insight into how district courts are approaching Section 101 cases since the Federal Circuit’s Berkheimer and Aatrix decisions based upon a recent RPX study. It is reposted below, with permission and cross-posted on my Chicago IP Litigation blog:

RPX’s latest quarterly review provides a deep dive on the effects of Berkheimer and Aatrix. If you forget, the Federal Circuit found in those two 2018 cases that Section 101 motions – at the Rule 56 and Rule 12 stages, respectively – should not be granted if the plaintiff properly raised a factual dispute regarding whether the asserted patent contains an inventive concept. Now, more than a year later, we have the data to see the impact of those cases.

According to RPX’s analysis, “district courts have as a whole become less likely to grant Alice challenges: Since the Federal Circuit issued its opinion in Berkheimer, courts have invalidated at least some claims from around 46 percent of patents challenged and adjudicated under Alice, a significant drop—roughly 23 percent [down] from the pre-Berkheimer nationwide invalidation rate of 69 percent.”

RPX also provides a breakdown of those decisions by the procedural stage, looking at both motions to dismiss and motions for summary judgment. At the Rule 12 stage, “the invalidation rate for patents challenged and adjudicated under Rule 12 – where a court has invalidated at least some claims – has dropped from around 70 percent to 45 percent.”

RPX provides further analysis and helpful charts to dig deeper into the Berkheimer/Aatrix effect, along with discussing the uptick in non-practicing entity activity, a PTAB update, the patent marketplace and more.

The entire review is worth reading and can be found here.

By: Anthony J Fuga|Taite R McDonald|Michael Obeiter

The U.S. District Court for the District of Colorado on April 17, 2019, upheld United Cannabis Corp.’s (UCANN) patent claims concerning a liquid cannabinoid formulation, “wherein at least 95% of the total cannabinoids is a specified cannabinoid or combination of them.”1

Pure Hemp challenged the claims in an early motion for summary judgment, arguing that UCANN’s claims are directed to “the unpatentable natural phenomenon of the specified chemical compounds (cannabinoids, terpenes, and flavonoids), as if UCANN is trying to secure a monopoly on those compounds.”

The court walked through the relevant precedent going back to the Funk Brothers 1948 U.S. Supreme Court opinion, which invalidated a new mixture of nitrogen-fixing bacteria: “Patents cannot issue for the discovery of the phenomena of nature. The qualities of these bacteria . . . are part of the storehouse of knowledge of all men.”

The court then acknowledged the current reality: the “proper application of the Supreme Court’s Alice standard is an evolving and sometimes hazy area of law . . . not as straightforward as the Supreme Court makes it sounds in Alice itself.”

Despite the “hazy area of law,” the court found that the challenged claims are not directed at unpatentable subject matter. Instead, “the obvious thrust of the patent is a supposedly new means by which humans can consume cannabinoids so that those cannabinoids can produce the pharmacological effect they are known to have, thus (hopefully) treating or ameliorating various diseases and symptoms.”

The court found Pure Hemp’s argument unpersuasive: “Pure Hemp has failed to establish beyond genuine dispute that a liquefied version of cannabinoids and related chemicals specified in the [patent claims] is anything like a natural phenomenon . . . Pure Hemp nowhere claims that these precise concentrations, or anything close to them, occur in liquid form in nature. Accordingly UCANN’s claims are not restatements of the ‘handiwork of nature.’ ”

The court finally noted that it sees reason to question whether the patent “claims anything novel, useful, or nonobvious” but its analysis here was limited to the Section 101 Alice inquiry.

Beyond the patent claims at issue in this case, it is important to note that cannabis-derived goods also occupy a “hazy area of law,” though one that is getting clearer every day. While hemp – defined as any part of the cannabis plant or a derivative with less than 0.3 percent delta-9-tetrahydrocannabinol (THC) on a dry weight basis – was legalized in the 2018 Farm Bill, in most states these products will continue to be illegal until the U.S. Department of Agriculture (USDA) issues regulations and states subsequently have their licensing and regulatory plans approved by USDA. And while changes are coming at the U.S. Food and Drug Administration, cannabis-derived products are still not permitted in food, drugs or supplements, and companies cannot make any unfounded and unproven claims of medical benefits.

In short, this is a rapidly evolving area of law at the federal and state level that requires all existing and potential market participants to remain vigilant.

Clients seeking further information on the District Court’s ruling and its impact or the current regulatory landscape may contact the authors.

Notes

1 United Cannabis Corp. v. Pure Hemp Collective, Inc., No. 18-cv-1922-WJM-NYW (D. Colorado, April 17, 2019)