In re Realtime Adaptive Streaming LLC Patent Litigation

Case overview — In re Realtime Adaptive Streaming LLC Patent Litig., MDL No. 2845 (J.P.M.L.)

The parties. The plaintiff is Realtime Adaptive Streaming LLC ("RAS"), a non-practicing patent-assertion entity. Its patents are held in the name of its corporate parent, Realtime Data LLC d/b/a IXO, an Armonk, New York patent-holding and licensing company (the JPML expressly referred to "Realtime's parent corporation" in its order). The asserted patents name James J. Fallon and Stephen J. McErlain as inventors and claim priority to a February 13, 2001 provisional application; Realtime Data has no operating business and monetizes the Fallon compression portfolio through licensing and litigation, with the 2017–18 streaming campaign run under the RAS name (in the parallel DISH/Sling case, an amended complaint substituted RAS for Realtime Data as plaintiff in October 2017). The defendants are operating companies across the video-delivery stack: streaming services (Netflix, Hulu, Sling TV/DISH, Amazon, Google/YouTube, Wowza, Brightcove), equipment and software vendors (Apple, Samsung, Sony, Cisco, Adobe, Polycom, Haivision, Intel, AMD, Broadcom, LG, Arris), and teleconferencing/enterprise video providers (Polycom, Avaya, Mitel). See JPML Order at 1–2 & Schedule A, In re Realtime Adaptive Streaming LLC Patent Litig., 326 F. Supp. 3d 1374 (J.P.M.L. Aug. 1, 2018), https://www.courtlistener.com/opinion/[7331679](/patent/7331679)/in-re-realtime-adaptive-streaming-llc-patent-litig/.

The accused technology and the patents. RAS alleged that products and services implementing industry video-compression standards — principally **H.264/AVC and H.265/HE

I'll research this across the JPML docket, constituent district court cases, PTAB proceedings, and any Federal Circuit appeals.

Now let me drill into the '442 patent specifically and the parallel PTAB proceedings.

Scope caveat first

MDL No. 2845 is a JPML administrative proceeding, not a district court case with a live docket of appearances. Because the Panel denied centralization on August 1, 2018, no transferee court ever appointed leadership or opened a consolidated docket, and the JPML's file contains the § 1407 motion papers rather than Rule 5.1 appearances. The practical answer therefore comes from two places: (1) the JPML's own docket sheets for each member action, which the Panel creates when a § 1407 motion is filed (all dated April 10, 2018), and (2) the signature blocks and appearances in the twelve underlying district court actions. The Panel's order itself (a copy is posted at bartlit-beck.com, "20180801 MDL Denial") names no counsel. I flag below which names are documented as of record versus which are inferred from the underlying dockets.

Plaintiff's core national counsel — Russ August & Kabat (Los Angeles)

Realtime Adaptive Streaming LLC was represented in the MDL-era litigation almost entirely by Russ August & Kabat ("RAK"), 12424 Wilshire Blvd., 12th Floor, Los Angeles, CA 90025, with Bayard, P.A. (Wilmington) and Eric B. Fenster, LLC (Denver) as local counsel.

The Justia JPML docket entries confirm that the plaintiff-side JPML appearances for Realtime Adaptive Streaming LLC v. Netflix, Inc., et al. (DE/1:17-cv-01692) are Stephen B. Brauerman, Sara E. Bussiere, C. Jay Chung, Marc A. Fenster, Brian David Ledahl, Reza Mirzaie and Philip X. Wang (dockets.justia.com JPML entry). The parallel JPML entry for Realtime v. Adobe Systems Inc. (MA/1:18-cv-10355) lists Chung, Fenster, Ledahl, Mirzaie, Wang and Hsieh plus two Massachusetts counsel whose names appear truncated on the public page ("David S. ___" and "James E. ___"); I have not been able to source those two Massachusetts local-counsel names, so I am not supplying them rather than guess.

Local counsel

Later counsel change at the PTAB (not district court)

In the IPR track — where the '442 patent was actually adjudicated (Adobe Inc. v. Realtime Adaptive Streaming LLC, IPR2019-00712, final written decision Aug. 17, 2020) — Realtime's lead PTAB counsel changed in 2019 to Joel P.N. Stonedale (Reg. No. 76,924) of Noroozi PC, Austin, TX, with Kayvan B. Noroozi (pro hac vice) of Noroozi PC, Los Angeles, as first back-up and RAK's Rubin and Shum remaining as back-up (Realtime's Updated Mandatory Notices, IPR2018-01187, Aug. 23, 2019). That Noroozi/Stonedale designation is a PTAB appearance only; I found no filing in which they appeared as counsel of record in any of the twelve § 1407 member actions, and none appears on the JPML dockets.

What I could not confirm

• The signatory of the § 1407 motion itself. The Panel's order and Schedule A are reproduced without a signature block in the accessible copies. The procedural history in Realtime Adaptive Streaming LLC v. Netflix, Inc., No. 17-1692-CFC-SRF (D. Del. Dec. 12, 2018) (D.I. 44, Fallon, M.J.) confirms only that "On April 10, 2018, Realtime filed a motion to transfer pursuant to 28 U.S.C. § 1407" — it does not name the filing attorney. Given that every contemporaneous Realtime filing in the member actions was signed by the RAK team, RAK is the firm of record, but I cannot attribute the MDL motion to a specific individual from primary sources.
• E.D. Texas local counsel. The Texas member actions (Amazon 6:17-cv-00549, Cisco 6:17-cv-00591, Samsung 6:18-cv-00113) would have required local counsel, but I did not locate a signature block identifying them, and I won't invent one.
• Any sealed or ex parte appearances. Nothing in the JPML order or the accessible district court records indicates sealing that would hide plaintiff-side counsel; the records appear complete on this point.

Bottom line

For JPML MDL No. 2845, the plaintiff's counsel of record is Russ August & Kabat (Los Angeles) — principally Marc A. Fenster, Reza Mirzaie, Brian D. Ledahl, C. Jay Chung and Philip X. Wang, with Paul A. Kroeger, Timothy T. Hsieh, James S. Tsuei and Shani M. Williams on the broader team and Neil A. Rubin and Kent Shum handling the PTAB side — supported by Stephen B. Brauerman and Sara E. Bussiere of Bayard, P.A. as Delaware local counsel and Eric B. Fenster of Eric B. Fenster, LLC as Colorado local counsel. The '442 patent, the one patent in this dataset, was litigated for Realtime by the RAK team led on the IPR side by Rubin/Shum and, from 2019, by Noroozi PC's Stonedale and Noroozi.

I'll research the JPML order and the constituent district court actions to identify defense counsel of record.

The MDL itself has no "defendant" per se — the defense-side counsel appear in the 12 constituent actions. Let me pin down which actions asserted the '442 patent and who appeared for each defendant.

Threshold point on scope

MDL No. 2845 has no defense-side "counsel of record" in the ordinary sense. It was a JPML § 1407 proceeding, not a trial court case: the parties are "movant" (Realtime) and "responding defendants," and the Panel denied centralization on August 1, 2018, so no transferee docket (and no consolidated defense appearance) ever came into existence. In re Realtime Adaptive Streaming LLC Patent Litig., 326 F. Supp. 3d 1374 (J.P.M.L. 2018); JPML order denying transfer, PDF. Defense counsel of record therefore exist only in the twelve transferor actions listed on Schedule A — and, because the Panel encouraged ad hoc coordination rather than ordering it (326 F. Supp. 3d at 1376), those appearances were made defendant-by-defendant, not through common counsel.

Second, a scope note on the '442 patent specifically: U.S. Patent 8,929,442 ("System and methods for video and audio data distribution," a Fallon-family continuation) was not asserted against every Schedule A defendant. It was asserted against Sony (Count III, D. Del. 17‑1693), Haivision (D. Del. 17‑1520 — "the Fallon patents, as well as U.S. patent No. 8,929,442," per the R&R in 17‑1692), Amazon (E.D. Tex. 6:17‑cv‑00549), and Adobe (one of seven patents in D. Mass. 1:18‑10355). Conversely, the Netflix Delaware complaint omitted it — "Realtime asserts claims for infringement of all of the Fallon patents, except the '442 patent," Realtime Adaptive Streaming LLC v. Netflix, Inc., No. 17‑1692‑CFC‑SRF (D. Del.), R&R at 1 n.1 — and the DISH/Sling Colorado action asserted only the '610 and '535 patents.

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Verified counsel of record