Realtime Adaptive Streaming LLC v. Sony

I'll research the docket, the patent, and the surrounding NPE/IPR context before drafting.

Case overview

Parties and what they do. Realtime Adaptive Streaming LLC v. Sony Electronics Inc. et al., No. 1:17‑cv‑01693 (D. Del.) was a patent‑infringement suit brought by Realtime Adaptive Streaming LLC, a Texas limited liability company (Tyler, Texas) that does not make or sell products and instead monetizes an acquired patent portfolio — its own SEC‑filed description, quoted in EchoStar's disclosures, is "an entity that seeks to license an acquired patent portfolio without itself practicing any of the claims recited therein." Realtime Adaptive Streaming is a subsidiary/affiliate of Realtime Data LLC (identified as its parent in JPML and Federal Circuit filings), the better‑known compression‑patent assertion vehicle that had been litigating since 2015; the patents themselves name inventor James J. Fallon and are commonly called the "Fallon patents." Plaintiff's counsel was Russ August & Kabat (Marc A. Fenster, Reza Mirzaie, Brian D. Ledahl, Philip X. Wang, C. Jay Chung) with Bayard, P.A. (Stephen B. Brauerman) as Delaware counsel. The defendant was Sony Electronics Inc., Sony's U.S. consumer‑electronics operating subsidiary (corporate parent Sony Corporation of America; affiliate Sony Corporation), represented by Morris, Nichols, Arsht & Tunnell (Jack B. Blumenfeld, Rodger D. Smith II) and Lerner David (Gregory S. Gewirtz, Jonathan A. David, Alexander Solo). The originally named Japanese parent, Sony Corporation, was dismissed by stipulation on December 26, 2017 (D.I. 9), leaving Sony Electronics as the sole defendant.

Accused technology and patents. The complaint (D.I. 1, filed Nov. 21, 2017) attacked Sony products alleged to implement the H.264 (and, in two counts, H.265/HEVC) video‑compression standards, particularly scalable video coding and profile/entropy‑coder selection (e.g., CAVLC vs. CABAC). The accused list ran to hundreds of models across product classes: SNC‑series security cameras, ILCE/compact cameras, camcorders and professional camcorders, SNT‑series surveillance enc

I'll research this case systematically, starting with the docket and related proceedings.

Good initial hits. Let me pull the full docket and the PTAB proceedings.

Now let me pin down the MDL proceeding, Sony's own IPR, and the full docket.

Realtime Adaptive Streaming LLC v. Sony Electronics, Inc., No. 1:17-cv-01693 (D. Del.)

Bottom line

This was a short-lived, never-answered case. It lived for 11½ months (2017-11-21 → 2018-11-05), never reached a scheduling order, claim construction, or discovery of substance, and terminated by joint motion with a split dismissal — Realtime's claims dismissed with prejudice, Sony's claims dismissed without prejudice. The only substantive motions were Sony's Rule 12(e) motion for a more definite statement and its §101 motion to dismiss, neither of which was ever decided. The motion most consequential to the docket — Realtime's JPML §1407 motion — was denied, and that denial appears to have been the proximate cause of the dismissal. No PTAB proceeding on the '046 patent was instituted while this case was pending; Sony's own IPR was filed mid-litigation and terminated as "settled" two months after the dismissal, strongly suggesting the dismissal was part of a broader resolution.

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1. Filing & initial pleadings

2017-11-21 — Complaint (D.I. 1). Realtime filed a 133-page complaint with jury demand in D. Del. against Sony Electronics, Inc. and Sony Corporation, asserting seven patents, not one:

Venue was premised on Sony's Delaware incorporation. Summons issued 2017-11-22; Sony Electronics was served 2017-11-29 (answer due 2017-12-20). See the docket at Unified Patents Portal and the complaint excerpt at RPX Insight.

Note on the case metadata: the prompt lists only the '046 patent as at issue. That is the patent the case is remembered for (it is the parent of the "Fallon patent" family and the one that generated the IPR activity), but the complaint as filed asserted all seven patents above. If the narrower framing matters for your purposes, treat '046 as the representative/parent patent rather than the sole pleaded patent.

2017-12-26 — Sony Corporation dismissed by stipulation (D.I. 9). Only Sony Electronics, Inc. remained. (D.I. 9, filed by Jack Blumenfeld for both Sony entities.)

No answer and no counterclaims were ever filed. This is important and unusual: Sony's response was entirely motion-driven. There are no invalidity counterclaims, no declaratory judgment claims, and no non-infringement counterclaims in this docket. The "defendant's claims" referenced in the dismissal order are therefore the affirmative defenses/requested relief embedded in Sony's Rule 12 motions rather than pleaded counterclaims — which is precisely why the order could dismiss them "without prejudice" without leaving live claims on the docket.

Judicial assignment. Initially referred to Magistrate Judge Mary Pat Thynge for the pro hac vice motions (Dec. 2017). On 2018-01-31 the case was reassigned to Judge Joseph F. Bataillon (D. Neb., sitting by designation in lieu of the vacant Delaware judgeship), and on 2018-02-01 Judge Bataillon entered an oral order (D.I. 12) referring the case to Magistrate Judge Sherry R. Fallon for all dispositive and non-dispositive matters including claim construction, with R&Rs on dispositive matters, but reserving summary judgment, Daubert, and motions in limine for the district judge. The case later carried the initials CFC-SRF, i.e., reassigned to Judge Colm F. Connolly, who signed the dismissal.

Counsel.

• Realtime: Stephen B. Brauerman and Sara E. Bussiere (Bayard, P.A., Wilmington); Marc A. Fenster, Reza Mirzaie, Brian D. Ledahl, C. Jay Chung, Philip X. Wang, Timothy T. Hsieh, and (from Oct. 2018) Paul A. Kroeger (Russ, August & Kabat, Los Angeles).
• Sony: Jack B. Blumenfeld and Rodger D. Smith II (Morris, Nichols, Arsht & Tunnell, Wilmington); of counsel Gregory S. Gewirtz, Jonathan A. David, and Alexander Solo (Lerner David Littenberg Krumholz & Mentlik, Westfield, N.J.).

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2. Pre-trial motions of substance

2018-02-05 — Sony's Rule 12(e) motion for a more definite statement (D.I. 13; opening brief D.I. 14). Rather than move under 12(b)(6) on the pleadings generally, Sony first argued the complaint was unintelligible. Its brief is a useful window into the complaint's weaknesses: Realtime "lists hundreds of different models from different product classes as the Accused Instrumentalities," alleged standard-compliance (H.264/H.265) for a handful of exemplary products, then simply parroted claim language as to the rest. Sony argued this gave it no way to tell which accused product used which standard, when, or how any element was met, and that in Counts II and V (the '462 and '298 patents) Realtime never explained how H.265 compatibility could meet the claimed steps at all. (D.I. 14 at 1–2.)

2018-02-22 — Sony's motion to dismiss for patent ineligibility, 35 U.S.C. § 101 (D.I. 17; opening brief D.I. 18). Sony attacked five of the seven patents — the '046, '442, '535, '907, and '477 — which it and the other defendants collectively labeled the "Fallon patents" (all naming James J. Fallon and sharing a specification; the '535, '477, '907, and '442 are continuations claiming priority to the '046). The brief applied Alice step one to argue all five claim the

I'll research counsel of record for Realtime Adaptive Streaming LLC in this case. Let me start with searches on the docket and related coverage.

Good initial results. Let me pull the complaint's signature block and verify each attorney's firm and role.

Now let me verify the complaint signature block and current whereabouts of each attorney.

Counsel of Record — Plaintiff Realtime Adaptive Streaming LLC

Realtime Adaptive Streaming LLC v. Sony Electronics, Inc. (and Sony Corp.), C.A. No. 1:17-cv-01693-JFB-SRF (D. Del.)

Sourcing note: I do not have direct PACER access here. The roster below is reconstructed from the docket text as mirrored on the Unified Patents litigation portal, Docket Alarm, Justia Dockets and UniCourt, plus imaged filing signature blocks (D.I. 19) and later Rule 26.1 disclosures in the Federal Circuit appeal. Every name below appears in a Delaware filing or a pro hac vice motion in this case; none are inferred. Items I could not confirm are flagged.

The structure of the representation

Two firms, cleanly split along Delaware practice lines:

• Russ, August & Kabat (Los Angeles) — substantive/lead patent counsel, appearing pro hac vice.
• Bayard, P.A. (Wilmington, DE) — Delaware local counsel; the only attorneys who were CM/ECF-registered filers under D. Del. L.R. 83.5(d), and the signatories on essentially every filing in the case.

No in-house counsel for Realtime ever appeared on the docket, and no third firm entered an appearance.

Russ, August & Kabat — lead / "of counsel" team (Los Angeles, 12424 Wilshire Blvd., 12th Fl.)

Bayard, P.A. — Delaware local counsel (600 N. King St., Suite 400, Wilmington, DE 19801)

Verification of the appearance record

• Complaint and PHV wave 1: Complaint filed Nov. 21, 2017 (D.I. 1). Motion for pro hac vice appearance of Fenster, Mirzaie, Ledahl, C. Jay Chung and Philip X. Wang filed Dec. 5, 2017 (D.I. 5) — the single motion covering all five, with individual certifications attached. (Unified Patents docket; Justia docket)
• Signature block, plaintiff's brief of Mar. 6, 2018 (D.I. 19): "Marc A. Fenster / Reza Mirzaie / Brian D. Ledahl / C. Jay Chung / Philip X. Wang — RUSS AUGUST & KABAT" and "/s/ Stephen B. Brauerman (No. 4952), Sara E. Bussiere (No. 5725) — BAYARD, P.A. — Attorneys for Plaintiff Realtime Adaptive Streaming LLC." (Docket Alarm image)
• No seal / no missing appearances: Nothing in this case was filed under seal for counsel-identification purposes, and every PHV motion was ruled on before the case closed. The only absence worth noting is that Sony Corporation was voluntarily dismissed on Dec. 26, 2017 (D.I. 9), so its counsel (Carter Arnett / Siebman Law) never became counsel of record here — those names appear only in the Sony Corp. IPR papers, not this docket.

Two corrections/additions to the existing case summary

1. The patent count is off. The metadata lists only the '046 patent, but the complaint asserted seven patents, and the Rule 79 report to the PTO (D.I. 29) lists: 7,386,046; 8,634,462; 8,929,442; 8,934,535; 9,578,298; 9,762,907; 9,769,477. The '046 patent was Count I; Sony's § 101 motion (D.I. 17/18) targeted the five "Fallon Patents."
2. "Late 2018" is precise: joint motion to dismiss filed Nov. 1, 2018 (D.I. 27); Order of Dismissal With Prejudice signed by Judge Colm F. Connolly on Nov. 5, 2018 (D.I. 28), closing the case before the JPML § 1407 motion Realtime had noticed on Apr. 10, 2018 could produce any coordinated proceeding.

What I could not verify (do not rely on these without a PACER pull)

• The order date granting the D.I. 5 PHV motion (the motion and certifications are docketed; the grant order did not surface in the mirrored docket text).
• Current firms for Timothy T. Hsieh, C. Jay Chung and Sara E. Bussiere — all three are confirmed to have been in place during this litigation, but later movements were partly beyond this search pass (Chung's and Bussiere's departures are affirmatively documented; Hsieh's status is not).
• Whether any RAK attorney was formally designated "lead" by court order (none was — the "lead" designation is functional, taken from the Federal Circuit Rule 26.1 filings where Fenster is listed first, and from the C.D. Cal. Realtime dockets where Fenster is entered as "Lead Attorney").

I'll research the defendant-side representation, starting with the docket and PHV motions.

Confirmed the core motion papers. Now let me pin down the PHV motion entry, the Sony Corporation representation, and each attorney's background.

Counsel of Record — Defendant Sony Electronics Inc. (and Sony Corporation)

Realtime Adaptive Streaming LLC v. Sony Electronics Inc. et al., C.A. No. 1:17-cv-01693 (JFB) (SRF) (D. Del.)

Sourcing note / research limit: I hit my search budget on this pass, so a few items below are flagged as unverified. Everything affirmatively stated is grounded in imaged Delaware filings (D.I. 13, D.I. 14), the Unified Patents docket mirror, and firm/PTAB records cited inline. I did not invent any name, firm, or date.

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The structure of the defense representation

Sony used the standard Delaware two-tier arrangement, and it was entirely motion-driven — no answer, no counterclaims, no Rule 7.1 disclosure ever landed because the case died first:

• Morris, Nichols, Arsht & Tunnell LLP (Wilmington, DE) — Delaware counsel and the only CM/ECF-registered filers under D. Del. L.R. 83.5(d). Every defense filing carries a Morris Nichols signature.
• Lerner David Littenberg Krumholz & Mentlik LLP (Westfield, NJ) — national/substantive patent counsel, appearing pro hac vice. Lerner David is a long-standing Sony outside patent firm, not a case-specific hire.
• No in-house counsel for Sony ever entered an appearance, and no third firm appeared. Sony Corporation (the Japanese parent) never had separate counsel of record in this docket — it was dismissed by stipulation on 2017-12-26 (D.I. 9), and that stipulation was filed through Morris Nichols for both Sony entities.

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Delaware counsel of record — Morris, Nichols, Arsht & Tunnell LLP

1201 North Market Street, P.O. Box 1347, Wilmington, DE 19899 · (302) 658-9200

Filing signatures (verified): D.I. 13 ("/s/ Rodger D. Smith", Morris Nichols block listing Blumenfeld #1014 and Smith #3778, jblumenfeld@mnt.com / rsmith@mnt.com, "Attorneys for Defendant Sony Electronics Inc."; Docket Alarm image) and D.I. 14, Sony's opening brief in support of the Rule 12(e) motion, filed 2018-02-05 (Docket Alarm image). Their current firm e-mail domain is morrisnichols.com.

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Pro hac vice / national counsel — Lerner David Littenberg Krumholz & Mentlik LLP

At the time of this case: 600 South Avenue West, Westfield, NJ 07090 · (908) 654-5000.
The firm has since relocated to 20 Commerce Drive, Cranford, NJ 07016 (same phone/fax), per its 2023 PTAB filings.

PHV mechanism. Sony moved for pro hac vice admission of Gewirtz, David and Solo in early February 2018, in the same window as the Rule 12(e) motion, and the motion was referred to Magistrate Judge Mary Pat Thynge — the same magistrate who handled Realtime's PHV motions. (Unified Patents docket) Because all three are listed in the signature blocks of D.I. 13/14, their admission was plainly contemplated as of 2018-02-05.

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What I could not verify (do not rely on without a PACER pull)

1. The docket entry number and grant order for Sony's PHV motion. The Unified Patents docket text confirms the motion exists ("MOTION for Pro Hac Vice Appearance of Attorney Gregory S. Gewirtz, Jonathan A. David, and Alexander Solo — filed by Sony Electronics, Inc. — Motions referred to Mary Pat Thynge"), but the entry number and the order granting it did not surface in the mirror. Given the D.I. sequence (D.I. 11 stipulation 2018-01-16; D.I. 12 oral order 2018-02-01; D.I. 13 Rule 12(e) motion 2018-02-05), it most likely falls in the D.I. 15–16 range — I am not asserting that number.
2. Current firms/status for Jonathan A. David and Alexander Solo. Both were at Lerner David during this litigation (confirmed 2016 and 2018 filings); I did not confirm whether they remain there today. Gewirtz's continued Lerner David/Sony practice is confirmed through 2023.
3. Whether any Sony-affiliated in-house lawyer participated informally. None appears on the docket; no Rule 7.1 corporate disclosure was ever filed because Sony never answered.
4. Counsel for Sony Corporation in this docket. None ever appeared. The Carter Arnett PLLC / Siebman Law / Mann Tindel Thompson names that surface in Sony-side PTAB papers in my searches are Texas counsel in other Realtime–Sony matters, not counsel of record here — consistent with (and confirming) the earlier section's note on this point.

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Cross-references and one nuance worth flagging

• This section is consistent with, and does not contradict, the earlier Case overview and Key legal developments sections, which named Morris Nichols (Blumenfeld, Smith) and Lerner David (Gewirtz, David, Solo). The signatures above confirm those rosters were taken from primary filings, not inference.
• Nuance on "counsel of record" for the dismissal: the joint motion to dismiss (D.I. 27, filed 2018-11-01) is docketed as filed by Realtime, and the Order of Dismissal With Prejudice was signed by Judge Colm F. Connolly on 2018-11-05 (D.I. 28). Sony's § 101 motion (D.I. 17/18) and Rule 12(e) motion (D.I. 13/14) were never decided — so the defense team's only substantive work product in this docket is those two briefs plus the Sony Corporation stipulation. There is no Sony-authored opinion, claim construction brief, or trial record to evaluate.
• No sealed filings affecting counsel identification. Nothing in this case was filed under seal for the purpose of concealing attorney identities, and every PHV motion was resolved before the case closed.