May 11, 2024
Since March 2020, WSOU Investments, LLC (d/b/a Brazos Licensing and Development) has been litigating patents from a large portfolio received from Nokia (including Alcatel-Lucent) in batches of cases filed separately against AMD (Xilinx), Huawei, ZTE, Microsoft, Dell (including EMC and VMware, the latter spun out and then later acquired by Broadcom), Alphabet (Google), HP Enterprise (HPE), Juniper Networks, F5 Networks, NEC, OnePlus, Canon, TP-Link, Arista Networks, Salesforce, Cisco, and NETGEAR—in that rough order. Litigation remains active against Arista, Cisco, Dell, F5, Google, Salesforce, and VMware, WSOU this past week suing Cisco ( 2:24-cv-00332) for a second time, targeting the provision of various networking products and services, ranging from optical line systems to switching platforms, with five patents.
WSOU first sued Cisco in February 2021, doing so in the Western District of Texas, with District Judge Alan D. Albright presiding. Jury selection is currently set for June 3, 2024. WSOU originally asserted five patents in that complaint (7,443,859; 8,191,106; 8,665,733; 8,989,216; 9,357,014), each issuing to either Nokia or Alcatel-Lucent between October 2008 and May 2015. Cisco filed petitions for inter partes review (IPR) attacking claims from the '106, '733, and '014 patents, leading to cancellation of all challenged claims from the '106 and '733 patents. Trial was not instituted as to the '014 patent, prompting Cisco to file an application for ex parte reexamination.
All three of those patents have been dropped from the case, with the parties amending their pleadings and/or infringement contentions for the '859 and '216 patent, Cisco contending in its amended answer that WSOU accuses Cisco's own prior art of infringement. The plaintiff is represented by Folio Law Group PLLC and Cherry Johnson Siegmund James PLLC since Susman Godfrey LLP withdrew from its representation of WSOU last August, stating that "[b]ased on recent events and discussions internal to the attorney-client relationship, Brazos and Susman have concluded that certain fundamental disagreements concerning the litigation will prevent Susman from effectively representing Brazos moving forward".
Folio Law Group filed the new complaint against Cisco for WSOU, this one in the Eastern District of Texas. WSOU asserts five more patents (7,386,630; 8,441,721; 8,498,286; 8,982,691; 9,450,884). The '630 patent generally relates to a "policy server device" that sends configured "customer" and "mapping" policies to device interfaces of an MPLS network, with Brazos targeting the Cisco Catalyst 9000 Switching Platforms and related products that support "Multiprotocol Label Switching (MPLS) Quality of Service (QoS) and DiffServ tunneling" through the use of Cisco IOS XE software and the Cisco Unified Access Data Plane (UADP) Application-Specific Integrated Circuit (ASIC).
WSOU previously asserted the '630 patent in a complaint filed against HPE (in litigation that is no longer active). The plaintiff also asserted the '884 patent earlier in this campaign, against Arista (in litigation that remains active). It generally relates to "adjusting bandwidth allocation by a network switching element". The Cisco Catalyst 9000-series switching products are the accused products with respect to this patent. The Arista case was transferred to the Northern District of California (from West Texas) where a stipulated stay to await PTAB proceedings concerning a different patent-in-suit is in place.
The '721, '286, and '691 patents are newly asserted in litigation. The '721 patent generally relates to determining "power setting values" for "pump lasers" based on "projected deviations" of "channel powers", with infringement allegations focused on the Cisco NCS 1010 Optical Line System. The '286 patent is broadly directed to "enabling a communication session for a wireline device". Here, WSOU targets the Ultra-M platform, which includes virtual machines that run on UCS C240-series services, on which for example the Cisco Prime Access Registrar (CPAR) can be installed. The '691 patent is generally directed to providing a "Backup Label Switched Path (LSP) to a Bypass LSP already established for a Protected Primary LSP", with WSOU targeting the Cisco NCS 4200-series Network Convergence Systems.
Early 2023 saw the first trial in a case filed by WSOU. It did not go well. In February of last year, in a set of three cases filed among a dozen against Dell, EMC and VMware, Judge Albright directed a verdict in the defendants' favor at the close of WSOU's case as to the one remaining patent, after granting summary judgment of no infringement of the other two a few days earlier. WSOU appears to have run afoul of the basic principle that a testifying expert can only present opinions at trial that have been outlined in an expert report, the contents of which must conform to the plaintiff's operative infringement contentions. For more detailed coverage, see "WSOU's First Trial Fizzles" (February 2023). Appeals followed but have been tabled in complicated fashion; also, Dell has continued its pursuit of shifted attorney fees in another case between the two.
An October 2023 trial before Judge Albright in a suit that WSOU filed against Google did not fare any better. After WSOU rested its case, Google moved for a judgment of noninfringement as a matter of law, arguing that the plaintiff failed to present evidence that the accused products (Google Maps and Google Pixel smartphones) perform the steps of the asserted claims in the order recited. WSOU responded by arguing that those steps need not be performed in the order outlined. The court disagreed, ruling that they must be and therefore WSOU failed to meet its burden. Judge Albright adjourned the trial and entered final judgment, which WSOU has appealed. Several other WSOU cases against Google appear to be line for trial before Judge Albright, another of which appears to have hit a serious snag.
Finally, WSOU's litigation against Salesforce appears to remain centered around the latter's license defense, Salesforce earlier this month moving Judge Albright for reconsideration of the court's grant of summary judgment to WSOU on that license defense. Salesforce contends that it is "manifest error" to rule as a matter of law that "WSOU is not an affiliate of Uniloc via common control" and that Craig Etchegoyen, the individual behind WSOU, is "not personally bound by the license agreement" between Australian NPE Uniloc Corporation Pty. Limited and Salesforce. To trace Etchegoyen's move from Uniloc to WSOU, see RPX's prior coverage at "Delaware Chief Judge Connolly Pulls Back the Curtain on West Texas Plaintiff with Familiar Ties" (March 2023).
Since March 2020, WSOU Investments, LLC (d/b/a Brazos Licensing and Development) has been litigating patents from a large portfolio received from Nokia (including Alcatel-Lucent) in batches of cases filed separately against AMD (Xilinx), Huawei, ZTE, Microsoft, Dell (including EMC and VMware, the latter spun out and then later acquired by Broadcom), Alphabet (Google), HP Enterprise (HPE), Juniper Networks, F5 Networks, NEC, OnePlus, Canon, TP-Link, Arista Networks, Salesforce, Cisco, and NETGEAR—in that rough order. Litigation remains active against Arista, Cisco, Dell, F5, Google, Salesforce, and VMware, WSOU this past week suing Cisco ( 2:24-cv-00332) for a second time, targeting the provision of various networking products and services, ranging from optical line systems to switching platforms, with five patents.
WSOU first sued Cisco in February 2021, doing so in the Western District of Texas where District Judge Alan D. Albright presides. Jury selection is currently set for June 3, 2024. WSOU originally asserted five patents in that complaint (7,443,859; 8,191,106; 8,665,733; 8,989,216; 9,357,014), each issuing to either Nokia or Alcatel-Lucent between October 2008 and May 2015. Cisco filed petitions for inter partes review (IPR) attacking claims from the '106, '733, and '014 patents, leading to cancellation of all challenged claims from the '106 and '733 patents. Trial was not instituted as to the '014 patent, prompting Cisco to file an application for ex parte reexam.
All three of those patents have been dropped from the case, with the parties amending their pleadings and/or infringement contentions for the '859 and '216 patent, Cisco contending in its amended answer that WSOU accuses Cisco's own prior art of infringement. The plaintiff is represented by Folio Law Group PLLC and Cherry Johnson Siegmund James PLLC since Susman Godfrey LLP withdrew from its representation of WSOU last August, stating that "[b]ased on recent events and discussions internal to the attorney-client relationship, Brazos and Susman have concluded that certain fundamental disagreements concerning the litigation will prevent Susman from effectively representing Brazos moving forward".
Folio Law Group filed the new complaint against Cisco for WSOU, this one in the Eastern District of Texas. WSOU asserts five more patents (7,386,630; 8,441,721; 8,498,286; 8,982,691; 9,450,884). The '630 patent generally relates to a "policy server device" that sends configured "customer" and "mapping" policies to device interfaces of an MPLS network, with Brazos targeting the Cisco Catalyst 9000 Switching Platforms and related products that support Multiprotocol Labe Switching (MPLS) Quality of Service (QoS) and DiffServ tunneling, by use of Cisco IOS XE software and the Cisco Unified Access Data Plane (UADP) Application-Specific Integrated Circuit (ASIC).
WSOU previously asserted the '630 patent in a complaint filed against HPE (in litigation that is no longer active). The plaintiff also asserted the '884 patent earlier in this campaign, against Arista (in litigation that remains active). It generally relates to "adjusting bandwidth allocation by a network switching element". The Cisco Catalyst 9000-series switching products are the accused products with respect to this patent. The Arista case was transferred to the Northern District of California (from West Texas) where a stipulated stay to await PTAB proceedings concerning a different patent-in-suit is in place.
The '721, '286, and '691 patents are newly asserted in litigation. The '721 patent generally relates to determining "power setting values" for "pump lasers" based on "projected deviations" of "channel powers", with infringement allegations focused on the Cisco NCS 1010 Optical Line System. The '286 patent is broadly directed to "enabling a communication session for a wireline device". Here, WSOU targets the Ultra-M platform, which includes virtual machines that run on UCS C240-series services, on which for example the Cisco Prime Access Registrar (CPAR) can be installed. The '691 patent is generally directed to providing a "Backup Label Switched Path (LSP) to a Bypass LSP already established for a Protected Primary LSP", with WSOU targeting the Cisco NCS 4200-series Network Convergence Systems.
Early 2023 saw the first trial in a case filed by WSOU. It did not go well. In February of last year, in a set of three cases filed among a dozen against Dell, EMC and VMware, Judge Albright directed a verdict in the defendants' favor at the close of WSOU's case as to the one remaining patent, after granting summary judgment of no infringement of the other two a few days earlier. WSOU appears to have run afoul of the basic principle that a testifying expert can only present opinions at trial that have been outlined in an expert report, the contents of which must conform to the plaintiff's operative infringement contentions. For more detailed coverage, see "WSOU's First Trial Fizzles" (February 2023). Appeals followed but have been tabled in complicated fashion; also, Dell has continued its pursuit of shifted attorney fees in another case between the two.
An October 2023 trial before Judge Albright in a suit that WSOU filed against Google did not fare any better. After WSOU rested its case, Google moved for a judgment of noninfringement as a matter of law, arguing that the plaintiff failed to present evidence that the accused products (Google Maps and Google Pixel smartphones) perform the steps of the asserted claims in the order recited. WSOU responded by arguing that those steps need not be performed in the order outlined. The court disagreed, ruling that they must be and therefore WSOU failed to meet its burden. Judge Albright adjourned the trial and entered final judgment, which WSOU has appealed. Several other WSOU cases against Google appear to be line for trial before Judge Albright, another of which appears to have hit a serious snag.
Finally, WSOU's litigation against Salesforce appears to remain centered around its license defense, Salesforce earlier this month moving Judge Albright for reconsideration of the court's grant of summary judgment to WSOU on that license defense. Salesforce contends that it is "manifest error" to rule as a matter of law that "WSOU is not an affiliate of Uniloc via common control" and that Craig Etchegoyen, the individual behind WSOU, is "not personally bound by the license agreement" between Australian NPE Uniloc Corporation Pty. Limited and Salesforce. To trace Etchegoyen's move from Uniloc to WSOU, see RPX's prior coverage at "Delaware Chief Judge Connolly Pulls Back the Curtain on West Texas Plaintiff with Familiar Ties" (March 2023).
WSOU's latest case against Cisco has been assigned to Chief Judge Rodney Gilstrap. 5/6, Eastern District of Texas.
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