In late March, Eastern District of Virginia Judge M. Hanna Lauck granted a Microsoft motion to transfer the case filed by ThroughPuter, Inc. there, a year ago nearly to the day, to the Western District of Washington. After losing the six-months long fight over that proposed transfer, ThroughPuter has doubled down, filing a new case against Microsoft ( 2:22-cv-00492) in the Western District of Washington, asserting two more patents from the same large family, both having issued to the plaintiff since it filed the first case last year. Both cases are situated in a central dispute over the early development of modern distributed computing systems.
On March 31, 2021, ThroughPuter accused Microsoft of infringing nine patents from the roughly 40-member family (9,424,090; 9,632,833; 10,133,599; 10,310,902; 10,318,353; 10,430,242; 10,437,644; 10,620,998; 10,963,306), this new complaint adding allegations as to two more (11,036,556; 11,150,948). The family has grant dates ranging from June 2012 through November 2021 with an earliest estimated priority date in February 2010. Prosecution of multiple related applications continues before the USPTO. Mark Sandstrom is the sole named inventor on the earliest patents, with others joining him on later members.
ThroughPuter's complaints allege a history of interactions between the parties that preceded the current litigation—with the pleadings laying out a tension in the development of distributed computing. ThroughPuter contends that it "disclosed a reconfigurable and dynamic parallel execution architecture running on FPGA processors in writing" to Microsoft in 2013. Two years later, Microsoft filed a patent application on the same "hardware-based fabric". For additional details on this history, as well as for more information on Sandstrom and ThroughPuter themselves, see "ThroughPuter Takes Aim at Microsoft's Azure Platform" (April 2021). Through both suits, the inventor-controlled plaintiff targets Microsoft's provision of its Azure cloud computing platform with its large family of patents.
In the Eastern District of Virginia, Microsoft responded to ThroughPuter's March 2021 complaint with a motion to dismiss claims for willful and indirect infringement, later filing a motion to transfer to the Western District of Washington. The court transferred the case, deferring to the new forum consideration of the motion to dismiss. Since landing before District Judge Barbara J. Rothstein in Washington, Microsoft has filed a motion to stay the case pending resolution of any proceedings instituted in response to five petitions for inter partes review (IPR), one of each of the '090, '833, '353, '242, and '306 patents, that Microsoft filed between February and April of 2022.
In mid-March 2022, Judge Rothstein denied a similar motion to stay in a set of cases filed by NPE WSOU Investments, LLC against F5 Networks, also filed originally in the Eastern District of Virginia but transferred to her court. There, Judge Rothstein did note in her order that F5 Networks had only filed petitions against a subset of the patents asserted across the four cases and that "it is far from certain that the PTAB will grant F5's petitions". However, she also cited with disapproval the timing of F5's petitions within the particular posture of those suits: "F5 filed the IPR petitions over a year after these lawsuits were initiated" where "[a]lmost all of the relevant deadlines in these cases have passed, and the trial date—already delayed once—has been set", further noting that "the filing of the IPR petitions appears to be little more than a dilatory tactic, in a case in which the Court has already been called upon to compel F5 to respond to discovery".
Microsoft argues in the brief supporting its motion for a stay that although it "did not file for IPR on four of the Asserted Patents, those patents are closely related to the patents subject to IPR and a favorable determination by the PTAB will affect the remaining patents" and that "this case is in its infancy" despite having been filed one year ago: "No scheduling order was entered when the case was pending in Virginia, the court there never ruled on the merits of Microsoft's partial motion to dismiss, and a schedule has not yet been issued in this Court". Notably, in December 2021, Judge Rothstein granted a motion to stay a case filed by WAG Acquisition, L.L.C. against several defendants pending resolution of ex parte reexam proceedings, the court finding that issues could be simplified through reexamination and that while fact discovery had closed, expert discovery and claim construction had yet to occur, with no trial date yet set. (The court also downplayed any prejudice to WAG where the plaintiff and defendants are not competitors; it is unclear how Judge Rothstein might view ThroughPuter and Microsoft here.)
ThroughPuter has yet to respond to Microsoft's motion to stay. The plaintiff is represented by Gardella Grace in the litigation. 4/13, Western District of Washington.
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