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Federal Circuit Again Declines to Nix Patent Suit Funding Probes

Jan. 4, 2023, 5:20 PM

The Federal Circuit kept alive a pair of patent litigation funding probes playing out in Delaware federal court, saying that Judge Colm F. Connolly isn’t obligated to end his inquiries even after patent owners Creekview IP LLC and Waverly Licensing LLC sought to dismiss their cases.

It would be too drastic a move at this stage to grant Creekview and Waverly’s requests to end what another targeted plaintiff called Connolly’s “judicial inquisition,” a three-judge panel wrote in two separate orders Wednesday.

“Notably, there is no absolute prohibition on a district court’s addressing collateral issues following a dismissal,” the panel wrote. It said that Creekview and Waverly have “not shown that the court has taken any action in this case that is so far outside its authority to warrant the extraordinary remedy of a writ of mandamus.”

The Federal Circuit previously allowed Connolly to continue pursuing information about the funding sources behind a handful of infringement cases launched by Nimitz Technologies LLC—much to the chagrin of the company that is still contesting Connolly’s authority.

Creekview and Waverly asked the appeals court to intervene after Connolly ordered them to attend hearings aimed at unmasking any undisclosed forces behind the patent owners.

Although Creekview and Waverly complained about Connolly’s somewhat unique standing orders requiring detailed corporate ownership information and disclosure of third-party funding, the Federal Circuit said “a direct challenge to those orders at this juncture is premature” because the parties haven’t yet been found in violation of the orders.

It would also be improper to force Connolly to end the cases even though Creekview, Waverly, and the defendants in their cases have agreed to end the disputes, the panel said.

Judges Timothy B. Dyk, William Bryson, and Sharon Prost sat on the panel.

The cases are In re: Creekview IP LLC and In re: Waverly Licensing LLC, Fed. Cir., Nos. 2023-108 and 2023-109, 1/4/23

To contact the reporter on this story: Kelcee Griffis in Washington at kgriffis@bloombergindustry.com

To contact the editor responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com