Dell and partners smash patent troll WSOU in court

In the land of patent litigation, all patent trolls want to file in the US Western District of Texas Court. This court is infamous for being sympathetic to patent plaintiffs. That's why patent litigator WSOU Investments, aka Brazos Licensing and Development, went after Dell, EMC, and VMware in this Court. Usually, this would have been the smart move. Not this time. District Judge Alan Albright granted the defendants a directed verdict, and that was the end of the matter.

What happened was this: WSOU, although successful before with their carpet bombing patent lawsuit strategy, failed this time. According to the lead defense counsel and Gibson Dunn partner, Brian A. Rosenthal, "This case got to trial because the plaintiff refused to come to their senses before trial. We obtained a number of serious exclusions of evidence prior to trial, and told them very early on the case had no merit." The judge agreed.

That came as a surprise to those of us who watch patent lawsuits, so you don't have to. As Heather Meeker, the well-known open-source and intellectual property (IP) lawyer, said, "This is surprisingly defendant-friendly from Judge Albright, who has received a lot of criticism for making Waco such a patent plaintiff-friendly docket."

Until now, WSOU had been very successful. As a Patent Assertion Entity (PAEs), its only goal is to profit by acquiring patents and then suing companies that might be using the patents' intellectual property (IP) assets. It does this by using its portfolio of technology patents to file numerous individual suits involving different patents against companies. WSOU's main tactic, as Unified Patents put it, "forces operating companies to either settle or fight, on average, eight lawsuits at once."

Most companies faced with the financial burden of struggling with so many lawsuits settle rather than fight. Not this time. For the first time, companies decided to take the issues to court. In this particular set of cases, WSOU claimed in a June 2020 lawsuit that the defendants had infringed on three cloud infrastructure networking patents, and sought $435 million in damages.

Rosenthal argued that the patents in question were old and irrelevant to the defendants' interests. The defense team had informed WSOU in October 2020 that there was no proof of direct infringement, but the plaintiff persisted with the case, leading to exclusions of evidence prior to trial.

So it was that on the first day of the trial, two of the patents were tossed out on evidentiary rulings, and the plaintiff rested its case on the third day. The defense then requested a directed verdict, which was granted by Albright, resulting in a win for the defendants. In short, even this patent-friendly court could find no evidence at all for WSOU's assertions.

Rosenthal said that the case was significant because the Waco Division federal court has the busiest patent docket in the US. Indeed, since 2021, Judge Albright had presided over 19 percent of all US patent cases In addition, this was the first case WSOU brought to trial in the country. Until now, the threat had been strong enough to make the companies facing them fold their cards rather than play the game out. After this, WSOU may face serious opposition in future cases.

For anyone opposed to patent trolls, this is good news. As Keith Bergelt, CEO of the Open Invention Network (OIN), the world's largest patent non-aggression community, said "For more than 15 years, we have worked to limit patent risk from various entities that have sought to impede the progress of open-source software (OSS) adoption. Approximately five years ago, we pivoted to focus more of our energy on limiting the ability of Patent Assertion Entities to collect rents from creators, distributors, and users of OSS. The OIN is heartened to see the result of the referenced WSOU case, and through its ongoing investment in the Unified Patents' OSS Zone, contribute to the weakening of WSOU patent claims relevant to open-source software."

Other noteworthy Linux and open-source stories:

• Linux app depot Flathub may offer paid-for software

• Microsoft .NET 8 bolsters Linux support

• Who writes Linux and open-source software?

SCALE 20X is Coming!

SCaLE 20x – the 20th Annual Southern California Linux Expo – is scheduled for March 9-12, 2023, at the Pasadena Convention Center in Pasadena, CA.

SCaLE is the largest community-run open-source and free software conference in North America. It is held annually in the greater Los Angeles area. It's well worth your time!