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Uber Technologies : Ikorongo Plaintiffs Sue Uber As Prior Defendants Hope For A Convenience Transfer Out Of West Texas

09/29/2020 | 06:13am EST

Concert Technology Corporation subsidiaries Ikorongo Technology, LLC (as patent owner except in certain Texas counties) and Ikorongo Texas, LLC (as patent owner in those Texas counties) have sued Uber Technologies ( 6:20-cv-00843) in the Western District of Texas. In March 2020, the plaintiffs sued Bumble (f/k/a Magic Lab Co.) (Bumble Trading), LG Electronics (LGE), Lyft, and Samsung there, each of those defendants having since moved for a convenience transfer to the Northern District of California. Among other things, LGE and Samsung argue that the plaintiffs' infringement contentions, while facially aimed at smartphones and tablets, are actually "directed at functionality found in the Google Maps, Google+, Google Play Music, YouTube Music, and AT&T Secure Family applications . . . running on those devices". The two patents asserted against Uber generally relate to automatically recording selected computer and internet usage data, including visited websites and location data, and uploading that data to a server for sharing to "buddies".

Those patents ( RE45,543; RE47,704) are also at issue against each of the earlier defendants. Ikorongo also asserted a third related patent ( RE41,450) in all four of those March 2020 complaints. Issuing between July 2010 and November 2019, the '450, '543, and '704 patents belong to a six-member patent family. They are reissues of the 7,080,139 patent (granted to Fatbubble, an inventor-controlled entity, in July 2006). The reissued patents were granted to various Concert subsidiaries between July 2010 and November 2019 and have estimated priority ranging between April 2001 and December 2014.

Yet another patent ( 8,874,554), generally directed to a playback device that identifies media and associates it with a geographic location, is asserted against only LGE and Samsung. The '554 patent issued in October 2014 to Concert subsidiary Lemi Technology, LLC. The patent shares an estimated priority date in December 2007 with its nine other family members, each member issuing between November 2011 and January 2017.

Currently available USPTO records identify as the last assignee of these patents Ikorongo Texas, which was the sole plaintiff on the original complaints filed in this campaign. On April 1, Ikorongo Texas followed up with amended complaints against each of the defendants, adding as coplaintiff Ikorongo Technology-which was identified in the original complaints as "the owner of the entire right, title and interest in the Asserted Patents, including the exclusive right under the Asserted Patents, within and throughout all parts of the United States and world not included in the Specified Part, including the right to sue for past, present and future infringement and damages thereof".

Notably, in both the original and amended complaints, Ikorongo pleads the following geographic distribution of rights in the asserted patents: "[P]ursuant to the principles of [the Supreme Court's 1891 holding in] Waterman v. Mackenzie", Ikorongo Texas "is the owner of the exclusive right under the Asserted Patents within and throughout a specified part of the United States ('the Specified Part') that includes specific counties within the present judicial district, including the right to sue for past, present and future infringement and damages thereof", and that Ikorongo Technology owns the corresponding rights outside of the "Specified Part". The counties included therein-all counties in Texas-are identified within the assignment agreement (see here, Schedule B) by which rights were transferred to Ikorongo Texas.

As noted, LGE and Samsung have moved to transfer the cases against them to California, arguing (among other things) that the AT&T Secure Family, Google+, and Google Maps apps to which the infringement allegations in the pleadings are directed were developed in the Northern District there, while Google Play Music and YouTube Music were developed in New York City. Lyft adds an argument concerning the current public health circumstances: "while all involved are hopeful for an end to the COVID-19 pandemic, traveling long distances on airplanes and staying in hotels in the current environment creates unnecessary risk for the many party and third-party witnesses located outside of Texas. That risk is especially pronounced for certain Lyft employees and third-party witnesses who are higher-risk individuals and have immunocompromised family members". Bumble appeals to judicial economy in suggesting for a conditional transfer-i.e., if the court transfers the other March actions, then argues Bumble, it should also transfer the case against it.

On its public website, Concert Technology is described as having been founded by a group of former employees at FlashPoint Technology, including Hugh Svendsen, who appears to have held past engineering positions with Apple and IBM. Svendsen is identified in public records as the managing member of Ikorongo Technology (formed in North Carolina in 2009) and Ikorongo Texas (formed in Texas on February 26, 2020). He has served as the CEO of Concert since 2006.

Prior to the suits filed by the Ikorongo plaintiffs, at least four Concert Technology subsidiaries had filed litigation in the US: Quito Enterprises, LLC (which sued 13 companies in 2008, including Amazon, CBS, Hulu, NBC, Netflix, and Pandora Media, over a single patent reportedly sold at an Ocean Tomo auction for more than $1M); Ambato Media, LLC (which sued 13 device makers in 2009, including Fujitsu, Garmin, JVC Kenwood, LG, Panasonic, Pioneer, and Sanyo, over a television receiver patent); Porto Technology, LLC (which sued Verizon and its subsidiary Cellco twice in 2012-2013 over navigation patents); and Black Hills Media, LLC (which litigated a total of 18 patents against 11 defendants between 2012-2017, targeting music playlist technology-and achieved multiple settlements, according to court filings).

In January, RPX called attention to a late 2019 flurry of internal transfers among Concert Technology and nine of its subsidiaries ( Cranbrook Enterprises, LLC; Pinehill Technology, LLC; Lemi Technology, LLC; Napo Enterprises, LLC; Porto Technology, LLC; Redlands Technology, LLC; Rhonda Enterprises, LLC; Vigo Media, LLC; and Waldeck Technology, LLC) involving over 250 US assets. RPX also noted at that time a divestiture by Ikorongo Technology, the plaintiff here, to IP3 2019, Series 400 of Allied Security Trust I. For more details, see " Concert Technology: Winding Down in 2020...or Rebooting?" (January 2020).

USPTO records made public indicate that Ikorongo Technology holds 39 US assets; Ikorongo Texas, 16. The NPEs' patent portfolios can be reviewed on RPX Insight here and here, respectively. The plaintiffs target Uber over provision of its Rider and Driver mobile apps, calling out features that match riders and drivers based on their smartphones' physical proximity to one another or that allow users to share their ride status (including estimated time of arrival and current location) with others.

The suits have all been assigned to District Judge Alan D. Albright. 9/15, Western District of Texas.

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.

RPX Corporation
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© Mondaq Ltd, 2020 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com, source Business Briefing

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