This is the latest in the series titled “NPE Showcase,” where we discuss high-volume non-practicing entities (or as some call them, “patent trolls”). This installment will focus on a company named Foothills IP.
Foothills IP is a non-practicing entity located in Texas, and owner of a single patent enforced through short term patent litigation (U.S. 6,057,862). The patent expired in 2017, providing Foothills with only a year or so to complete its patent enforcement efforts before the end of the six year statute of limitations on damages. Foothills previously owned a patent that expired in 2016 and for which damages could no longer be obtained after June of this year.
The patent is broad on its face and relates to multiple databases with associated memory switches. Foothills argues the defendants infringe by, among other things, providing question and answer services over the internet.
Foothills has now filed seven lawsuits (five settled) and all were filed in the patent-heavy Eastern or Western Districts of Texas. Foothills appears to lump its patent enforcement campaigns by industry. In April 2021, it sued three companies in the furniture rental business. Foothills then sued two companies in the cybersecurity software business just a week later. The most recent campaign targets companies in the video gaming industry.
There are several reasons to attack multiple competitors at the same time, including the strain it places on a joint defense group that could otherwise share the costs of defense and collaborate against the plaintiff. Most large-scale NPE cases will cause the defendants to band together and split the costs of defense with their communications protected by the common interest privilege. But competitors are reluctant to collaborate because of concerns over the confidentiality of information or, quite frankly, the prospect of helping a competitor.
It’s unclear whether Foothill targets a particular industry as a strategic measure or for some other reason. None of Foothills’ lawsuits have lasted more than a few months before settling. So it does not appear that any of the cases progressed to the point where a joint defense group would share the burden with their collective resources.