A Lonely Island? Intellectual Property Analysis of Pragmatus AV
On April 18, 2012, the U.S. International Trade Commission announced an investigation into a patent infringement complaint filed by patent licensor Pragmatus AV against ASUS, HTC, LG, Pantech, RIM and Samsung concerning mobile phones and tablets. The five patents in the complaint had been previously purchased and owned by Intellectual Ventures (“IV”). In addition, five of the six defendants have previously signed licensing agreements with IV.
Pragmatus AV, a patent licensing entity based in Virginia, has asserted its patents 21 times in the United States against 24 companies. A full list of litigants sued by Pragmatus AV and Pragmatus Telecom is found in the full report.
One of the companies first sued by Pragmatus was Facebook. On November 15, 2010, five days after the asserted patents were transferred from Intellectual Ventures to Pragmatus, Pragmatus sued Facebook in two separate suits. It has since sued Facebook three additional times.
Most recently, Pragmatus has targeted ASUS, HTC, LG, Pantech, RIM and Samsung for patent infringement in both the District Court of Delaware and in an ITC complaint. The ITC complaint should come as no surprise, given the amount of ITC proceedings recently in the smart-phone sector. As Paul Roeder of HP states, “Patent litigators have come to view the ITC as an alternative venue for patent litigation.”
However, as is the case now with Pragmatus, these complaints are often the result of “revenue-driven licensing.” Roeder argues in his article that “with proper enforcement of the domestic industry requirement, most patent infringement claims will not support an ITC investigation” and specifically states the harm of these patent licensors asserting continuation patents in their complaints. Most of the asserted Pragmatus patents, as well as most of Pragmatus’ portfolio, are continuations, but more on this later.
All this aside, no one seems to be pointing out that five of the six defendants in Pragmatus’ recent ITC complaint are, or were, current licensees of Intellectual Ventures.
A number of companies buy patents from others and assert them days later (we’re looking at you, Facebook), so why is this case worth mentioning? Let’s consider another entity which has previously procured patents from IV only to assert them later, such as Oasis Research. In 2010, Oasis disclosed, by court order, that “Intellectual Ventures Computing Platforce Assets LLC” had a financial interest in the case – a point echoed by Peter Detkin, a founder and VP of IV, in the NPR’s When Patents Attack story in July 2011.
Could Pragmatus have a similar deal with IV? IV has not disclosed any deal. As Reuters reported, “Steve Mallouk, vice president of channel licensing at IV, said in a statement that IV ‘does not own or operate Pragmatus AV.’ However, IV declined to discuss the terms of its patent deal with Pragmatus, including whether IV has a stake in the litigation against Facebook and others.” However, Tom Ewing and Robin Feldman, in their January 2012 Standford Technology Law Review study on patent aggregators, note the role played by a lawyer named John Desmarais. “Desmarais is the litigator for the patent infringement lawsuit that Intellectual Ventures has filed against the field programmable gate array manufacturers. He is also the litigator for one of the Pragmatus cases filed using patents formerly owned by Intellectual Ventures, as well as the litigator for Oasis Research, a possible Intellectual Ventures privateering operation.” NPR listeners may recall Laura Sydell attempting to get information from Desmarais about Oasis Research.
But enough of this background information. Let’s look at the actual patents in question.ShareThis