Blemel Technologies LLC v. National Instruments Corp.

Case Overview: Blemel Technologies LLC v. National Instruments Corp.

Parties and accused technology. Blemel Technologies LLC, the plaintiff, is a patent-assertion/licensing entity affiliated with inventor Kenneth Blemel — the sole named inventor of the patent in suit — who developed the underlying technology in New Mexico, reportedly in connection with U.S. Air Force-related prognostics and health-monitoring work (e.g., UH-60 helicopters, aircraft propulsion systems, ballistic missiles). Docket databases classify Blemel as an "NPE (L)" (small/licensing-type non-practicing entity), not an operating company. Defendant National Instruments Corp. (NI) is a major Austin, Texas-based operating company that designs and sells modular test, measurement, and embedded-control systems. NI's flagship reconfigurable I/O (RIO) platform — specifically the CompactRIO, FlexRIO, and sbRIO product lines (the "RIO products") — was accused of infringement. Per the complaint, those products combine a microprocessor for I/O control with a user-reconfigurable field-programmable gate array (FPGA) and real-time time-stamping of acquired data, and Blemel alleged both direct infringement (35 U.S.C. § 271(a)) and induced infringement (§ 271(b)), the latter premised on NI's LabVIEW software being used by customers to configure RIO hardware into infringing configurations (complaint ¶¶ 14, 19–21, available via RPX Insight, doc. 12255839).

Patent and procedural posture. The sole asserted patent is U.S. Patent No. 6,938,177, entitled "Multi-Chip Module Smart Controller," issued August 30, 2005 to inventor Kenneth Blemel. In one-line technical terms, the '177 patent claims an embedded instrument/controller architecture combining a microprocessor controlling inputs/outputs, a separate FPGA acting as a freely reconfigurable parallel processor, and a real-time quartz clock that time-stamps data before storage in non-volatile memory — enabling field-reprogrammable, time-stamped monitoring and control across diverse platforms. Procedurally, Blemel filed suit on February 3, 2015, in the Marshall Division of the Eastern District of Texas (2:15-cv-00134) — historically the nation's most patent-plaintiff-friendly venue — and NI, headquartered in Austin, moved to transfer the case to the Western District of Texas under § 1404(a). A secondary-source summary (Studicata) describes a 2016 E.D. Tex. decision denying an NI transfer motion on convenience grounds (attributed there to "Judge Payne," though Roy S. Payne is the Marshall magistrate judge and the underlying order was not independently verified on PACER for this analysis). Nevertheless, the case was ultimately transferred to the Western District of Texas, re-docketed as 1:16-cv-01280, and terminated by a joint motion to dismiss with prejudice — i.e., a settlement — with the W.D. Tex. action showing closed status as of November 15, 2016 (RPX Empower; Ex Parte case database).

Why the case is notable. This is the earliest-known family litigation over the '177 patent and illustrates the classic E.D. Tex. NPE-vs-operating-company pattern: a small inventor-side licensing entity asserting an FPGA-instrumentation patent against one of the largest suppliers of FPGA-based test-and-measurement equipment, squarely targeting NI's core CompactRIO/FlexRIO/sbRIO product lines and its LabVIEW ecosystem. Venue was the central battleground — Marshall (plaintiff-friendly, historically fast) versus Austin (NI's home forum and the hub of its witnesses, documents, and engineering staff) — and the case's eventual transfer to W.D. Tex. followed by prompt dismissal with prejudice suggests resolution on terms (likely a license) rather than merits adjudication. Notably, no parallel IPR or subsequent family litigation surfaced in available sources, and no substantive claim-construction or merits opinion was located; details of any settlement (e.g., licensing terms) are not publicly documented.

Key Legal Developments & Outcome — Blemel Technologies LLC v. National Instruments Corp.

Below is the litigation timeline based on verified case-file/docket data (RPX Empower; Ex Parte docket databases) and corroborating secondary sources. Where a fact rests only on a secondary source, or where sources conflict, I flag it explicitly. I was unable to pull the PACER docket sheets directly in this session, so docket-entry-level detail (exact motion dates, order docket numbers) is incomplete; nothing below that is not sourced is dressed up as verified.

1. Filing and initial pleadings

• 2015-02-03 — Complaint filed. Blemel Technologies LLC sued National Instruments Corp. in the Marshall Division of the Eastern District of Texas, No. 2:15-cv-00134, asserting infringement of U.S. Patent No. 6,938,177 ("Multi-Chip Module Smart Controller"). The complaint alleged direct infringement (§ 271(a)) and induced infringement (§ 271(b)) of the RIO platform — CompactRIO, FlexRIO, and sbRIO products — with inducement premised on customers' use of NI's LabVIEW software to configure the accused hardware. Blemel was classified in docket databases as a non-practicing/licensing entity ("NPE (L)"); inventor Kenneth Blemel was the patent's sole named inventor. (RPX Empower case page; Ex Parte docket page; complaint text via RPX Insight doc. 12255839.)
• Defendant's answer / counterclaims. No answer, counterclaim, or other initial responsive pleading was located in public sources searched. NI's defense counsel included Chris Perque (then FisherBroyles), whose firm bio confirms his role for NI in this case (FisherBroyles attorney profile). I cannot verify the answer date or whether NI asserted counterclaims — no such docket entry surfaced.

2. Pre-trial motions of substance — the venue battle

• NI's § 1404(a) motion to transfer to the Western District of Texas. NI moved early in the case to transfer from Marshall to Austin (W.D. Tex.), arguing that its witnesses, documents, and engineering staff were centered in Austin.
• A 2016 E.D. Tex. ruling denying transfer is described by the secondary source Studicata, attributed to Judge Payne: the court reportedly found both venues proper but concluded NI had not shown the W.D. Tex. was "clearly more convenient," noting evidence of invention development in New Mexico and New York and the convenience of an Air Force witness (Mr. Leitch) for the Eastern District (Studicata case summary). Caution flags: (1) This summary is machine-generated and not independently verified against PACER; (2) it is in apparent tension with the case's ultimate transfer to the W.D. Tex. — the most plausible reconciliations are that the Studicata page reflects a magistrate judge's report/recommendation later rejected by the district judge, or a denial of an initial transfer motion followed by a later-granted renewed motion (or transfer by consent), but I could not verify which. The prior case overview correctly flagged this order as unverified on PACER.
• Other motions. No motions to dismiss for failure to state a claim, stays pending IPR, or summary-judgment motions surfaced in any source searched. Given the early settlement (below), the case likely never reached SJ.

3. Claim construction (Markman)

• No Markman hearing or claim-construction order occurred. Defense counsel's firm bio states NI obtained its settlement "before claim construction" in a "patent infringement case involving microcontrollers" (FisherBroyles — Chris Perque profile). No claim-construction opinion appears in any database searched.

4. Discovery

• No publicly documented discovery milestones (protective orders, claim-narrowing stipulations, expert reports, sanctions disputes) were located. The case appears to have ended during fact-discovery phase, before expert/claim-construction work, consistent with the pre-Markman settlement.

5. Transfer, settlement, and final disposition

• Transfer to W.D. Tex. The case was transferred to the Western District of Texas and re-docketed as No. 1:16-cv-01280 (Austin Division) (Ex Parte/RPX database entries for both case numbers; case metadata). The exact transfer-order date is not verified; E.D. Tex. case 2:15-cv-00134 shows a closed status of 2016-11-15 in docket databases, consistent with a transfer-and-termination in late 2016.
• Dismissal with prejudice. The W.D. Tex. action was terminated by a joint motion to dismiss with prejudice — i.e., a negotiated settlement — with the case shown closed as of 2016-11-15 (Ex Parte docket page for 1:16-cv-01280; RPX Empower). Defense counsel confirms the resolution was a "favorable settlement for defendant" obtained before claim construction (FisherBroyles bio).
• No trial, verdict, judgment on the merits, JMOL, new-trial motion, fee award, or appeal occurred at any point. There is no published district-court opinion on infringement or validity.

6. Parallel PTAB proceedings

• None found. No IPR or PGR petitions against the '177 patent (U.S. Patent No. 6,938,177) surfaced in any source searched, and no PTAB institution or decision was located. The absence of an IPR is consistent with the case settling quickly before the PTAB petition window would have been a productive lever (or before NI chose to pursue one).

7. Overall outcome summary

Bottom line: This was a short-lived NPE-vs-operating-company case (roughly 21 months from filing to close) that never got past the venue skirmish phase in substance. The decisive events were (a) NI's venue fight — which per one unverified secondary account it initially lost but which ultimately succeeded in moving the case to Austin — and (b) the parties' settlement, memorialized as a joint dismissal with prejudice in the W.D. Tex., resolving the case with no Markman ruling, no merits decision, no PTAB challenge, and no public license terms.

Documentation gaps to flag for further research: exact dates/docket numbers for NI's answer, the transfer order(s), and the joint motion to dismiss; the identity of the district judge who signed the transfer and dismissal orders; and confirmation of whether the Studicata-described transfer denial was a magistrate recommendation or final order. These are retrievable from PACER for 2:15-cv-00134 and 1:16-cv-01280 but were not accessible in this session.

Plaintiff's Counsel of Record — Blemel Technologies LLC v. National Instruments Corp.

Based on the complaint on file in the E.D. Tex. action (2:15-cv-00134), the following is verifiable from the signature block reproduced on RPX Insight (litigation doc. 12255839):

Verified attorney

Gerald J. Flattmann, Jr.

• Role: Signing attorney on the complaint / listed among "ATTORNEYS FOR PLAINTIFF BLEMEL TECHNOLOGIES LLC"; identified in the signature block as "Admitted in E.D. Texas" (so he was not merely pro hac vice there).
• Firm/location: Paul Hastings LLP, 75 East 55th Street, New York, NY 10022 (email in the block: geraldflattmann@paulhastings.com).
• Experience note: Flattmann is a veteran patent litigator (Paul Hastings IP partner, New York), with a long track record representing both plaintiffs and defendants in district-court patent cases, including E.D. Tex. matters. (This characterization is general; the case-specific engagement for Blemel is confirmed only by the complaint signature block, not by a firm biography tied to this docket.)

Caveats and what could not be verified

• A possible second signing attorney is truncated in the source. The RPX-available complaint signature page begins with an electronic signature reading "/s/ Michael E. …" immediately preceding Flattmann's contact block. The full surname could not be retrieved from available snippets, so I cannot responsibly name the attorney without risking error. (One plausible possibility given the truncated first/last initials and Paul Hastings context is patent-litigator Michael E. McCabe Jr., who was at Paul Hastings during that era — but that identification is not confirmed and should be treated as unverified speculation unless checked on PACER/ECF.)
• Complete counsel table not confirmed. I could not access the full PACER docket (which would show all notices of appearance, pro hac vice motions, and designation of local counsel), and the later W.D. Tex. docket (1:16-cv-01280) counsel entries were not retrievable in full either. There may have been additional plaintiff-side attorneys — including a Marshall/E.D. Tex.-based local counsel — who are not visible in the snippet of the complaint signature page.
• No contrary evidence of a different lead firm surfaced. Searches returned no firm announcement, court opinion, or Law360/Reuters piece naming additional plaintiff counsel, and no IPR or appellate briefing exists in this matter that would have generated further attorney listings.

Bottom line: The only plaintiff attorney affirmatively identifiable from the record is Gerald J. Flattmann, Jr. (Paul Hastings LLP, New York). A second signatory ("Michael E. ____") appears on the same signature page but is unverifiable from available sources; for a complete, authoritative list of counsel of record, PACER entry 1 (complaint) and the appearance/pro hac vice entries in both 2:15-cv-00134 (E.D. Tex.) and 1:16-cv-01280 (W.D. Tex.) would need to be pulled directly.

Based on the available search results, I can identify one confirmed defense attorney of record for National Instruments Corp., with a caveat that the complete PACER-verified roster could not be fully reconstructed within the search limits available.

---

Confirmed defense counsel for National Instruments Corp.

1. Chris P. Perque

• Role: Lead/defense counsel for National Instruments (the defendant). His own firm biography lists this case under his representations of NI and describes him as having "[o]btained a favorable settlement for defendant before claim construction in a patent infringement case involving microcontrollers."
• Firm/office during the case: This is a timing-sensitive point. Perque was a partner at Gardere Wynne Sewell LLP (Houston) from February 2007 through June 2016 — meaning he handled the E.D. Tex. phase (filed Feb. 3, 2015) of this case at Gardere. He then moved to Adams and Reese LLP (Houston) in June 2016, overlapping with the W.D. Tex. phase and the November 2016 settlement/termination. His current firm is FisherBroyles LLP (Houston/New York), which hosts the bio confirming his role. (Texas State Bar #24005828; licensed 1998; Tulane Law J.D. 1991; LSU B.S. 1985.)
• Relevant experience: Longtime NI defense counsel in patent matters. His bio also credits him with favorable outcomes for NI in Cian IP, LLC v. National Instruments Corp. (W.D. Tex., settlement after claim construction), SoftVault Systems, Inc. v. National Instruments Corp. (N.D. Cal., early dismissal on § 101 grounds), and prosecution of NI's trade-secret case National Instruments Corp. v. Fuller et al. (Travis County, Tex.). He is an experienced IP litigator (Best Lawyers–recognized since 2011; ~30 years handling patent, trade secret, and technology litigation).
• Source: FisherBroyles attorney bio, https://fisherbroyles.com/people/chris-perque/ ("Blemel Technologies, LLC. v. National Instruments Corp. (E.D. Tex.) — Obtained a favorable settlement for defendant before claim construction..."); career history per ContactOut/LawTally/PatentBots profiles (Gardere 2007–2016; Adams and Reese 2016–2020).

---

Verification caveats and what could not be confirmed

• Full defense team not independently verified. I could not access the PACER docket sheets for 2:15-cv-00134 (E.D. Tex.) or 1:16-cv-01280 (W.D. Tex.) within my search limits, so I cannot confirm whether Perque appeared alone or with co-counsel (e.g., other Gardere/Adams and Reese partners, local E.D. Tex. counsel, or NI in-house counsel). No secondary source I located lists additional defense attorneys of record for this specific case. Do not treat the roster above as exhaustive.
• Firm affiliation mid-case. Because the case spanned Perque's June 2016 move from Gardere Wynne Sewell to Adams and Reese, his firm of record in the pleadings likely changed across the two venues (E.D. Tex. filings in 2015–early 2016 under Gardere; W.D. Tex. filings in mid-to-late 2016 potentially under Adams and Reese). His FisherBroyles bio confirms only the outcome, not the signing firm per filing.
• For cross-reference (plaintiff side, not requested): The RPX-hosted complaint signature block shows plaintiff's counsel included Michael E. Jones (Potter Minton, likely) and Gerald J. Flattmann Jr. (Paul Hastings LLP, New York) — confirming that RPX's document repository captures the filed pleadings if a full docket review is later needed (RPX Insight doc. 12255839).
• No sealed-counsel indication. Nothing in the sources suggests NI's filings were sealed or that counsel failed to appear; rather, the case progressed to transfer and a joint dismissal with prejudice, consistent with an active defense led by Perque.

Bottom line: The only defense attorney affirmatively documented as representing National Instruments in this matter is Chris P. Perque (then Gardere Wynne Sewell / later Adams and Reese; now FisherBroyles). If a complete attorney-of-record list is required for filing or expert purposes, the definitive source remains the PACER dockets for 2:15-cv-00134 and 1:16-cv-01280, which I was unable to query in full here.