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Intellectual Ventures LLC (IV), throughsubsidiary Intellectual Ventures II LLC (IV II), has suedDell (VMware) (6:20-cv-00220) over the provision of variousproducts related to virtualization and data center network trafficmonitoring and optimization. Five patents of disparate origins areasserted in the new Western District of Texas complaint, IV havingmoved three of them into the plaintiff's possession back in2018, assigning the other two to IV II earlier in Marchalongwith five others of similar subject matter but not yet asserted inlitigation. Various VMware products are accused of infringing thefive patents.
Those five patents include a single asset (9,338,217) from a family having one memberasserted in litigation before acquisition by IV; three patents (7,016,963; 9,092,546; 9,686,378) from a 13-member family no memberof which appears to have been previously litigated; and a fifthpatent (6,816,464) comprising a family of one alsomaking its debut in litigation.
The '217 patent broadly concerns, according to theplaintiff, "an improved way to provide remotely hosted virtualmachines to users". It issued to an IV affiliate in May 2016as the most recent member in a 13-patent family, the earliest ofwhich issued to G&H Nevada-Tek, a Nevada partnershipbetween the '217 patent's named inventors Michael L. Goughand Paul L. Hickman. Gough and Hickman assigned the family to aTexas entity that the two createdAccolade Systems LLCbetween 2007 and2010 before returning them to G&H Nevada-Tek ahead of theirNovember 2011 assignment to an IV entity.
During the three years that Accolade Systems held a portion ofthe '217 patent family, the entity filed two cases assertingone of them (7,130,888), a short-lived 2007 suit againstCanadian cyber security company 01 CommuniqueLaboratory, LogMeIn (merged withCitrix subsidiary GetGo inNovember 2017), and Symantec (nowNortonLockLife after acquisition byBroadcom in November 2019), each of which wasdismissed with prejudice after little substantive litigation; and a2007 case filed originally against Cisco(WebEx), Citrix, and LaplinkSoftware that persisted into 2010 against Citrix alone.The claims against Laplink Software were dismissed with prejudicein relatively quick fashion, while Accolade Systems and Cisco(WebEx) settled in April 2009, roughly one month before DistrictJudge Leonard Davis handed down the claim construction order in the case. Only the claims againstCitrix proceeded toward trial, but Judge Davis granted summaryjudgment in the defendant's favor after Citrix argued that thesettlement with Cisco (WebEx) covered its use of any and allaccused products as a customer of Cisco (Citrix stating that it"has used only Cisco routers and switches with its GoToServices"). Accolade Systems appealed, but the parties endedtheir dispute before midstream.
On March 11, 2020, IV moved the '217, together with two ofits family members (8,484,317; 8,751,597) to IV II's hands, presumablyfor assertion in litigation. VMware is alleged to infringe the'217 patent through the provision of various virtualizationproducts, including "vSphere, ESX/ESXi, Horizon/View, vCenterServer, Connection Server, vMotion and vSAN", targetinguser-side features, server-side features, and relevantinfrastructure used to serve and maintain virtual machines withpersonalized storage and settings.
IV II pleads that the '963, '546, and '378 patentsbelong to a five-member family generally related to "animproved way to invoke and deliver server-based applications toremote client devices based on unique client characteristics".The three issued in March 2006, July 2015, and June 2017,respectively, the earliest to Melia Technologies(d/b/a Nimbus Software), which assigned the familyto an IV affiliate in March 2009. A different IV affiliate movedthem into IV II's hands in September 2018.
VMware is alleged to infringe the '963 and '546 patentsthrough the provision of "Horizon View, vSphere, ESX/ESXi,vCenter Server, [and] Connection Server" products, targetingfeatures that provide virtualized apps as a service, includingfeatures related to displaying remote user interfaces. Thedefendant is alleged to infringe the '378 patent through theprovision of "Horizon/View, Horizon Client/Horizon HTML 5Client, vSphere, ESX/ESXi, vCenter Server, [and] ConnectionServer" products, targeting features related to transmittinguser input to a remote virtual computer and displaying thatcomputer's interface on the client computer.
The '464 patent generally relates, according to IV II, to"an improved way to test candidate network routes and select asubset thereof for interconnecting gateways across a wide areanetwork (WAN)". It issued in November 2004 to ArrayTelecom, comprising a family of one and passing intoIV's possession in November 2011. An IV affiliate moved the'464 patent to IV II's hands on March 11, 2020, togetherwith two others (7,822,841 and 8,352,584), the first assignee of which isModern Grids, a Colorado entity formed by theirnamed inventor Jeffrey B. Franklin. The accused products are"VMware NSX and SD-WAN by VeloCloud", with featuresrelated to data center network traffic monitoring and optimizationtargeted.
IV moved at least seven patents in three transactions to IV IIon March 11, 2020: the '271 patent, together with its twofamily members; the '464 patent, together with the two Franklinpatents; and a single patent (7,793,051) originally issued to PantaSystems, a failed California company from which IV pickedup the patent in May 2012. The two Franklin patents broadly relateto "hosting computing clusters for clients"; the '051patent, to shared memory.
IV was founded in 2000, with the new complaint touting theNPE's origins, particularly the accomplishments of NathanMyhrvold, the former Microsoft CTO and one of IV's cofounders.IV II pleads that "[u]nder Dr. Myhrvold's leadership, IVacquired more than 70,000 patents covering some importantinventions of the Internet era", two "significantaccomplishments" of which are characterized as the"related technologies of cloud computing andvirtualization".
While IV has launched roughly a dozen litigation campaigns since2010, in recent years, it has turned to divesting patents at anaccelerating rate, announcing plans to halt the acquisition of newpatent assets and forging a "deepened" relationship withTexas monetization firm Dominion Harbor Enterprises, LLC, to which IVhas assigned multiple patent portfolios over the past severalyears, initially of smaller size but more recently of considerablebulk. Batches of patents have been assigned to myriad otherentities, including other NPEs. RPX has prepared aliving report cataloging IV's divestitures to NPEs sinceJanuary 1, 2016, as well as notable subsequent assertioncampaignsthe latest version of that report can be downloadedfrom RPX Insight here. 3/25, Western District of Texas.
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