XR Communications LLC d/b/a Vivato Technologies v. AT&T Inc.
2:23-cv-00202
| E.D. Tex. | Sep 22, 2025Background
- XR Communications LLC d/b/a Vivato Technologies sues AT&T, T-Mobile, and Verizon for patent infringement in the Eastern District of Texas.
- Plaintiff alleged Defendants infringe via use of products allegedly purchased from Nokia and Ericsson.
- On June 18, 2025, the parties stippled to a dismissal with prejudice as to the Nokia products.
- On July 1, 2025, Defendants moved to supplement expert reports to add opinions that the dropped Nokia products are NIAs.
- The court found the motion and stipulation were filed after discovery closed and denied leave as untimely and futile.
- The court held Nokia products are not available as NIAs and rejected Defendants’ reliance on the Kessler doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to allow supplementation of expert reports | XR contends late stipulation warrants no NIAs. | Defendants seek NIAs based on dropped Nokia products via supplemental reports. | Denied; motion untimely and futile. |
| Whether dropped Nokia products can be NIAs | Nokia products remain potentially infringing; not NIAs due to stipulation. | Stipulation and estoppel grant Nokia limited trade rights for NIAs. | Not NIAs; still infringing if applicable; not retroactively available. |
| Applicability of the Kessler doctrine | Kessler prevents use of claims against customers after non-liability. | Kessler supports treating Nokia as an NIA due to post-settlement rights. | Not applicable; stipulation did not extinguish all rights and fairness concerns remain. |
Key Cases Cited
- AstraZeneca AB v. Apotex Corp., 782 F.3d 1324 (Fed. Cir. 2015) (an instrumentality cannot be used as a non-infringing alternative)
- Datascope Corp. v. SMEC, Inc., 879 F.2d 820 (Fed. Cir. 1989) (noninfringing substitutes must be independent from accused instrumentality)
- Pall Corp. v. Micron Separations, Inc., 66 F.3d 1211 (Fed. Cir. 1995) (settlements do not retroactively create NIAs; accountings depend on timing)
- Grain Processing Corp. v. Am. Maize-Prod. Co., 185 F.3d 1341 (Fed. Cir. 1999) (accounting period determines availability of an alternative for damages)
- In re PersonalWeb Techs. LLC, 961 F.3d 1365 (Fed. Cir. 2020) (Kessler doctrine fairness exceptions; licensing context matters)
- Biscotti Inc. v. Microsoft Corp., 2017 WL 2607882 (E.D. Tex. 2017) (timeliness governs motions to supplement expert reports)