United States: Core Optical Sues ADVA And Cisco, As Court Weighs Marking Challenges In Earlier Suits

In early July, Judge A. Kronstadt of the Central District of California took under submission multiple early motions, filed separately by Juniper Networks and Nokia, in cases brought against them by inventor-controlled Core Optical Technologies, LLC in November 2019. Among other things, each defendant moved to dismiss the complaint against it for failure to plead satisfaction of the marking requirements under 287 by prior licensees Fujitsu, Ciena, and Infinera. As the parties await Judge Kronstadt's rulings, Core Optical has filed two new cases in the same district, one each against ADVA Optical Networking ( 8:20-cv-01463) and Cisco ( 8:20-cv-01468).

The asserted patent ( 6,782,211) generally relates to separating multiple optical signals ("waveforms") on the same frequency using a cross-polarization interface canceler technique. Core Optical accuses the defendants of infringement through the provision of "devices that can be configured to mitigate and/or cancel cross polarization interference in received fiber optic signals", including, for ADVA, the FSP 3000 Series Platforms, including the FSP 3000 AgileConnect, FSP 3000 CloudConnect, and FSP 3000 AccessConnect Platforms (and related hardware and software); and for Cisco, the Network Convergence System 1000 Series, NCS 2000 Series, NCS 4000 Series, and ONS 15454 Series optical networking platforms (and related hardware and software).

The '211 patent has expired. As noted, Juniper and Nokia each attacked Core Optical's pleading for failure to allege marking, in response to which Core Optical filed amended complaints asserting only method claims and arguing in opposition to renewed motions to dismiss that no such marking is required where only method claims are at issue. Each defendant contests that view of the law's requirement. The set of motions taken under submission in early July also challenges Core Optical's willfulness allegations, its indirect infringement allegations, and personal jurisdiction as to Nokia Corporation, while each defendant also moved to stay pending resolution and Juniper filed a concurrent motion to transfer the case against it to the Northern District of California.

The '211 patent has already been the subject to two claim construction orders: one issued on October 25, 2013, in the Ciena case, and the other, on May 9, 2018 in the Infinera suit. Both of those orders were handed down by District Judge Andrew J. Guilford of the Central District of California. In the second order, the court denied Infinera's challenges to three claim terms as indefinite: "general inverse", "generally complex"/"generally complex elements", and "generally orthogonal". Judge Guilford provided constructions for the first two and ruled that no construction is necessary for the third.

The '211 patent issued to sole named inventor Mark T. Core in August 2004 with estimated priority date in November 1998. Core assigned the patent to Core Optical in August 2011, about three months after that entity's formation in California in May 2011. According to the NPE's complaints, Core received his PhD in electrical and computer engineering from UC Irvine. He is identified as the CEO and president of Core Optical. In its first complaint, filed against Ciena in October 2012, Core Optical disclosed Mark T. Core as a nonparty having an interest in the outcome of the litigation, but in subsequent disclosures the NPE has not so identified Core, or any other such nonparties.

Between the 2012 Ciena case and the March 2017 Infinera case, Core Optical also sued Fujitsu. Fujitsu, in August 2016 ( IPR2016-01618), and Infinera, in June 2018 ( IPR2018-01259), each filed a petition for inter partes review of the '211 patent. While each defendant succeeded in convincing Judge Guilford to stay the case before him to await conclusion of those proceedings before the PTAB, the Board, in each circumstance, refused to institute trial, prompting the court to lift each stay. Settlements soon followed. 8/6, ADVA, 8/7, Cisco, Central District of California.

Originally published 12 August, 2020

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.