{"id":1337,"date":"2024-12-24T14:48:17","date_gmt":"2024-12-24T14:48:17","guid":{"rendered":"https:\/\/ipfray.com\/?p=1337"},"modified":"2024-12-24T14:48:17","modified_gmt":"2024-12-24T14:48:17","slug":"after-almost-5-years-of-being-sued-by-broadcom-netflix-files-u-s-countersuit-over-former-hp-virtualization-patents-upc-filings-to-follow","status":"publish","type":"post","link":"https:\/\/ipfray.com\/staging1\/after-almost-5-years-of-being-sued-by-broadcom-netflix-files-u-s-countersuit-over-former-hp-virtualization-patents-upc-filings-to-follow\/","title":{"rendered":"After almost 5 years of being sued by Broadcom, Netflix files U.S. countersuit over former HP virtualization patents: UPC filings to follow?"},"content":{"rendered":"\n
\n

Context:<\/strong> In the early phase of the COVID-19 pandemic, Broadcom (Avago) started to sue Netflix over video streaming patents (March 14, 2020 Variety article<\/a>). Para. 20 of the complaint (PDF<\/a>) alleges that Broadcom’s business of selling “semiconductor chips used in the set top boxes that enable traditional cable television services” was substantially and irreparably harmed by Netflix: “[A]s a direct result of the on-
demand streaming services provided by Netflix, the market for traditional cable
services that require set top boxes has declined, and continues to decline, thereby
substantially reducing Broadcom\u2019s set top box business.” Lawsuits in other jurisdictions, particularly Germany, followed (some of those developments will be discussed further below).<\/p>\n\n\n\n

What’s new:<\/strong> Netflix may have determined that sometimes the best defense is a good offense. To end a dreadful year for Broadcom’s multi-year (but so far unsuccessful) enforcement campaign against the streaming company with a retaliatory strike, Netflix yesterday filed an infringement lawsuit over a handful of former HP patents in the Northern District of California against Broadcom and its VMware subsidiary. Those virtualization patents are allegedly infringed by VMware.<\/p>\n\n\n\n

Direct impact:<\/strong> Netflix may realistically not have had an alternative to that district, which is neither a rocket docket nor patentee-friendly but where all the parties are based. While it will take some time before this case could give Netflix any leverage in the form of a damages award, Broadcom has been unsuccessfully trying for almost five years to force Netflix into a settlement, so Netflix may be hoping that there comes a point at which Broadcom’s board or senior executives will pull the plug on that litigation and opt for a face-saving exit.<\/p>\n\n\n\n

Wider ramifications:<\/strong> In order to gain actual leverage, Netflix may also want to sue Broadcom and\/or any of its subsidiaries in the Unified Patent Court (UPC) and\/or in German national court. However, those HP virtualization patents are U.S.-only assets.<\/p>\n<\/div>\n\n\n\n

It is out of character for Netflix to assert patents, but for the reasons stated above, the purpose may be to accelerate the path toward a settlement. Netflix’s offensive case has been brought by a team of lawyers led by Baker Botts’s Rachael Lamkin<\/a>, a very well-known patent litigator. Here’s the complaint:<\/p>\n\n\n\n