United States: XR Communications Files Patent Infringement Action Against ARRIS in ND Cal After Ruckus Wireless Case Is Transferred There

Last Updated: May 17 2018
Article by RPX Corporation

In April 2017, XR Communications, LLC (d/b/a Vivato) launched a litigation campaign with 11 lawsuits, each asserting the same three wireless communications patents. Quick dismissal of one of those cases left ten active in the Central District of California, the one against Ruckus Wireless becoming messy following Brocade's sell-off of Ruckus to ARRIS in the wake of its own acquisition by Broadcom. XR Communications tried to salvage the situation by filing against ARRIS in the Los Angeles court, but District Judge Andrew J. Guilford handed down a colorful March 20, 2018 order, transferring the Ruckus Wireless case to the Northern District of California. XR Communications has responded by dismissing its Central District case against ARRIS and filing a new one (5:18-cv-02736) in the Northern District, targeting certain access points and routers sold by ARRIS, including certain of its SURFboard and Touchstone cable modems. Meanwhile, back down in Los Angeles, the court has stayed the remaining cases in light of multiple petitions filed for inter partes review (IPR) of the three patents-in-suit.

Before transferring the Ruckus Wireless case up north, the parties engaged in multiple rounds of venue-related discovery, prompting Judge Guilford to open his transfer order as follows: "Like a collection of nesting dolls, this case involves hotly debated legal issues nestled one around the other. On the outside, a patent case with a motion at the pleading stage. Moving inward, patent venue. At the center, alter ego. And trying to put it all together, a Court left to wonder why one side fights for the Central District of California and why the other side can't imagine life away from the Northern District of California. Not to mention wondering if the parties truly feel the answers to these questions were worth all their time and expense." Either way, the case was transferred out, with District Judge William H. Orrick now presiding in the Northern District.

Infringement allegations related to the three wireless communications patents (6,611,231; 7,062,296; 7,729,728) asserted in each of XR's complaints focus on Wi-Fi routers using the MU-MIMO and 802.11ac-2013 standards (the '296 patent), routers with phased array antennas and certain transceivers (the '728 patent), and routers with adaptive antennas (the '231 patent). While XR Communications filed an initial disclosure in some cases that identified only the actual parties to the lawsuit as having an interest in its outcome, the plaintiff subsequently moved for permission from the court to file a certificate of interested parties under seal, arguing the lack of public interest in its contents, which were provided to help the court assess potential conflicts. The court granted the motion.

In his April 10, 2018 order staying the remaining cases before him, Judge Guilford acknowledged the parties' dispute over whether XR Communications is a non-practicing entity, noting as part of its consideration of any undue prejudice imposed on the plaintiff by delay that XR "does not assert that it is a current competitor in the same market as Defendants", "does not seek injunctive relief against Defendants in this suit", and "seeks only monetary relief". The court granted the stay as to all defendants in light of IPR petitions filed by defendants Cisco and HPE (Aruba), but only temporarily as to Belkin and NETGEAR, as they had informed the court that they intended to file petitions but had not done so. The court indicated that it expected to see filed either new such petitions or statements agreeing to be bound by statutory estoppel as to Aruba's and Cisco's proceedings or "the calculus in deciding" the stay motion would "drastically change[]". On May 3, 2018 (just before the statutory deadline), ARRIS, Belkin, and NETGEAR filed a petition for IPR of each patent-in-suit.

The other stayed cases are against ASUS, Digital Products International (NEWO d/b/a Amped Wireless), D-Link, Extreme Networks, and Ubiquiti Networks. NEWO filed a motion seeking to have the suit filed against it severed and stayed pending resolution of the other cases. NEWO argued that it is "trapped in expensive patent litigation out of all proportion to its small size and limited resources", noting that even a generous estimate of the damages that might be owed to XR for NEWO's alleged infringement amounts to "roughly $120,000 for the past two years", which falls far below the range provided to the court of "$24 million in damages in some cases to over a hundred million in other cases". The motion goes on to recount NEWO's attempts to settle the case, presenting a firm offer in November 2017, to which XR did not respond substantively until NEWO filed its motion to sever. In support of its motion, NEWO further represents that the "accused technology is implemented in third-party chips" in light of recent subpoenas purportedly served on Annapurna Labs, Broadcom, Marvell, MediaTek, Qualcomm, and Quantenna Communications. The NEWO motion has been (at least temporarily) mooted by the broader stay.

A prior art search report for the patents-in-campaign is available on RPX Insight.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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