United States: Blitzsafe Texas Files New Wave, Making Its Campaign One Of The Longest Running

Blitzsafe Texas, LLC and GM have filed a third request to stay the 2019 case between the two, indicating that an additional 14 days are required to "finalize the settlement documents with a third-party supplier". In late April, Eastern District of Texas Judge Rodney Gilstrap granted the request indicating that the "Court does not anticipate further extensions". A dismissal there will end Blitzsafe's entire wave of 2019 cases, which included now-settled suits against PACCAR, Stellantis (Fiat Chrysler, Maserati), and Unigroup (Navistar). However, a fresh Blitzsafe wave—of cases filed against Aptiv (f/k/a Delphi) (2:21-cv-00160), Continental (2:21-cv-00161), EinCar Tech (2:21-cv-00162), JVC Kenwood (2:21-cv-00163), Marelli Europe (2:21-cv-00164), Namsung (2:21-cv-00165), Sony (2:21-cv-00166), and Zhejiang Geely (Volvo) (2:21-cv-00167)—will keep this campaign, which targets integration of mobile devices into in-vehicle infotainment systems, stretching into its second decade.

The asserted patents (7,489,786; 8,155,342) comprise a family of two, issuing in February 2009 and April 2012, respectively, with an estimated priority date in December 2002. Ira Marlowe is named as the sole inventor on the patents; the family has been litigated in waves, via Marlowe himself and several entities that he controls, including Blitzsafe Texas: a 2010/2011 set of suits, through Marlowe Patent Holding Limited Liability Company (Marlowe PH), against Ford and six others; a 2015 set of suits, brought against auto manufacturers Honda, Hyundai, Nissan, Toyota, and Volkswagen; a 2017 set, filed against automakers BMW, Daimler, Mazda, Subaru, TATA Motors (Jaguar Land Rover), and Volvo, as well as auto supplier Robert Bosch; the 2019 set, against Fiat Chrysler, GM, Navistar, and PACCAR; and this most recent set.

The PACCAR case ended, after a notice of settlement, in December 2020; the Navistar suit, similarly, in January 2021. Early March saw a notice of settlement filed (and stay imposed) in the Fiat Chrysler/Maserati litigation; a dismissal with prejudice was entered on May 11. Blitzsafe Texas and GM were barreling toward jury selection on April 5, after an unsuccessful attempt by GM to postpone the proceedings in light of the COVID-19 pandemic—denied by District Judge Rodney Gilstrap, ruling that the court was "prepared to safely conduct in-person proceedings", that any continuance would prejudice Blitzsafe, and that any due process concerns can be addressed in "myriad ways"—when they filed their notice of settlement and sought their first stay.

Prior to the flurry of pretrial filings, the parties jointly asked Judge Gilstrap to forego a Markman hearing and to enter certain aspects of the claim construction order that the court had already entered in the 2017 wave. Robert Bosch, in the longest lasting suit from that wave, had done the same thing, back in May 2019. By December of that year the case had been dismissed with prejudice in light of another settlement, as had the suits against the other 2017 defendants. The BMW litigation in that wave was marked by a dispute over an issue also raised in the 2019 wave: whether venue over an automaker can lie based on purported control exercised over dealerships. For coverage of Judge Gilstrap's treatment of that issue, see "Additional Automakers Sued in Blitzsafe's Ever More Storied Texas Campaign" (November 2019).

BMW also sought, after the close of fact discovery, to depose Edward Fisher, "a former engineering consultant" of Blitzsafe America, Inc.". BMW's motion alleged that Fisher disclosed to its counsel, in negotiations over compliance with BMW's subpoena, that "he had previously received a threatening email from Blitzsafe, as described . . . and that he had destroyed any related documentation in his possession". BMW sought to question Fisher about, among other things, purported inclusion of BMW source code within the asserted patents themselves, as well as to support an on-sale bar defense based on Blitzsafe's own products. Those products featured prominently in previous waves of this campaign; for details, see "Litigation Campaign Plagued by Alleged Floods, Computer Failures, and a Hunt Through Egyptian Internet Archives Sees New Round of Suits" (May 2017).

In the 2017 case against Volvo, Blitzsafe named as the accused products "audio and multimedia integration systems, which have been installed in Volvo-branded vehicles made in or imported into the United States since at least approximately 2011, including the 'Sensus Connect' system, which allegedly included "iPod/iPhone and mp3 integration kits that Volvo purchases from third-party suppliers including, but not limited to, Mitsubishi Electric Corporation, Mitsubishi Electric U.S. Inc., and Mitsubishi Electric Automotive America, Inc.". In its new case against Volvo, the plaintiff targets such systems in "Volvo and Mack branded vehicles made in or imported into the United States since at least approximately 2015", including "iPod/iPhone and MP3 integration kits that Defendant makes and sells through its subsidiaries, and purchase from third-party suppliers including, but not limited to, Pana-Pacific, Aptiv (formerly Delphi), and Peiker".

Blitzsafe Texas was formed in Texas on July 8, 2015. It is a subsidiary of Blitz Safe of America, Inc., a New Jersey entity formed in February 1985. As noted, Blitz Safe appears to have attempted to commercialize the patents that issued to Marlowe, who founded the company, before he turned to patent assertion in 2010. That year, Marlowe assigned the '786 patent to Marlowe PH, a New Jersey entity that he had formed in March 2009. Marlowe PH then asserted the '786 patent in litigation, first against AAMP of Florida, DICE Electronics, Pacific Accessory, Precision Interface Electronics, USA Spec, and VAIS Technology in March 2010 and then against Ford in December 2011. The District of New Jersey issued an order construing terms from the claims of the '786 patent in January 2015.

The Marlowe/Blitzsafe litigation campaign has seen more than two dozen petitions for inter partes review of either the '786 or '342 patent. The PTAB has refused to institute trial in response to most of those petitions, and none has led to the cancellation of claims. However, an ex parte reexam proceeding, apparently triggered by Daimler and that resulted in a final office action cancelling claims 49-57, 60, 62-64, 66, 68, 70-71, 73-80, 84, 88, 95, 97, 99-103, 106, 109-111, 113, 115, and 120 of the '342 patent, is on appeal. There, Blitzsafe argues that the rejections should be reversed because the combined prior art (two published patent applications, one of them Marlowe's) does not teach "a multimedia device integration system that includes an integration subsystem and that provides all of the claimed functionality by using an integration subsystem". 5/12, Eastern District of Texas.

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