RFCyber Corp. v. Costco Wholesale Corp.

I'll research this case and its broader context before drafting.

Let me dig into RFCyber's background, the IPR history, and the 2024 filing wave.

Now let me verify the docket details, the other 2024 cases' outcomes, and the earlier campaign's results.

Case Overview and Background

Parties. RFCyber Corp. is a small, Plano, Texas–based holder of a mobile-payments patent portfolio, and the plaintiff in this suit. RPX characterizes RFCyber as "inventor-backed," and the patents-in-suit name Liang Seng Koh (Fremont, CA) as lead inventor — consistent with a company built around its founder's own R&D rather than a classic mass-aggregator. Note that sources diverge on the label: PatSnap's litigation database calls RFCyber a "mobile payment patent assertion entity," while at least one docket aggregator (ExParte) classifies it as an "operating company." The verifiable facts are that RFCyber has asserted this portfolio in repeated waves since 2020, appears to have no current consumer product business, and co-owns the '855 patent with Rich House Global Technology Ltd. of Shenzhen, China — a dual-assignee structure that became the subject of a standing challenge in earlier litigation (Judge Gilstrap declined to dismiss on that basis in the Samsung case in February 2022, per Law360). RFCyber is represented by Fabricant LLP (Alfred R. Fabricant, Peter Lambrianakos, Vincent J. Rubino III, Richard M. Cowell, Jacob D. Ostling), with Justin K. Truelove also appearing. Costco Wholesale Corp. is the well-known Issaquah, Washington–based membership warehouse club and one of the largest retailers in the world; in this wave of suits it was sued as an end-user/operator of mobile payment functionality in its own app, not as a technology vendor.

Accused technology and patent. The sole patent asserted against Costco is U.S. Patent No. 8,448,855 ("Method and apparatus for funding an electronic purse"), issued May 28, 2013 from Application No. 13/400,038 (filed Feb. 18, 2012), a continuation of the application that issued as U.S. Patent No. 8,118,218. Technical sketch: it claims a server-side method for "funding an e-purse" — a stored-value wallet on a portable device — over an open network, in which a server receives a request from the phone, verifies it against a bank account, initiates a fund transfer with the user's financial institution, and then sends commands back that cause an "emulator" on the device to update a transaction log after a "midlet" authenticates those commands; the e-purse must have been "personalized" by establishing a security channel between the card module and an external Security Authentication Module (SAM), with a second security channel layered on top. The accused instrumentality was the Costco App and its supporting servers — specifically contactless and in-app payment flows using saved payment cards, Costco Cash/gift-card value, and accrued rewards. The complaint, filed July 18, 2024, charted at least claim 9 against those features and sought a finding of willfulness (Docket No. 1; Ex. A). As with its sibling complaints, RFCyber expressly reserved other claims for later.

Posture and venue. Filed in the Marshall Division of the Eastern District of Texas before District Judge Rodney Gilstrap (2:24-cv-00546-JRG). Venue was uncontroversial for a national retailer, and E.D. Tex. offered RFCyber a fast track and a judge already deeply familiar with these patents from the 2020–22 Google/Samsung/LG litigation, including the October 27, 2021 Markman hearing in No. 2:20-cv-00274. The docket is short: summons issued July 19, 2024; service effected July 29; Costco obtained two unopposed extensions of its answer deadline (Dkt. 11, 14, granted Dkt. 15 and 16); and before any answer, motion to dismiss, or transfer motion was filed, RFCyber filed a Notice of Voluntary Dismissal on October 18, 2024 (Dkt. 17). Judge Gilstrap's October 23, 2024 order accepted the Rule 41(a)(1)(A)(i) dismissal without prejudice, with each side bearing its own costs and fees (Dkt. 18). Notably, that same day the court entered a consolidation order grouping the sibling cases — Kroger (2:24-cv-00548), Shell (2:24-cv-00549), Starbucks (2:24-cv-00550, as lead case), Walmart (2:24-cv-00551) and Volkswagen (2:24-cv-00575/576) — for pretrial purposes; Costco was not part of that consolidated group because it had already exited. Per PatSnap, defense counsel of record included Perkins Coie (M. Craig Tyler, Ramsey M. Al-Salam, Ruben T. Kendrick), though I could not independently confirm those appearances from the RECAP docket entries I reviewed.

Why the Case Is Notable

This is a data point in a recognizable second-wave assertion pattern. RFCyber's original August 2020 campaign targeted the platform companies — Google/Google Payment (2:20-cv-00274), Samsung (2:20-cv-00335), and LG (2:20-cv-00336) — asserting five patents ('218, '855, '787, '009 and '046) against Samsung Pay and Google Pay. Those cases largely stalled or resolved without a merits judgment (the Samsung case closed March 6, 2023; Google Payment was dismissed; RFCyber's suit against Visa in W.D. Tex., No. 6:22-cv-00697-ADA, ended in a February 2024 dismissal after the parties "resolved" the claims). The July 2024 refiling moved downstream to deep-pocketed retailers and brands — Costco, Kroger, Starbucks, Walmart, Shell, and Volkswagen — recasting ordinary retail-app wallet features (stored value, saved cards, QR/NFC checkout) as e-purse infringement. That pivot matters for the retail sector: it signals that any merchant app with stored-value or contactless checkout is arguably in scope, and it explains why trade press (Law.com/The Recorder, July 23, 2024) and retail-litigation watchers covered the wave.

The case also sits on a meaningful IPR record. Samsung's IPR2021-00978 challenging all claims of the '855 patent was denied institution on December 14, 2021 (Paper 10), with the Board finding no reasonable likelihood of prevailing — a result Law.com flagged in its coverage. Google (IPR2021-00954) and Apple (IPR2022-01241 on the '855, and IPR2022-01240 on the '218) also petitioned; I was not able to verify the final outcomes of those proceedings in this pass and flag that as an open item rather than assume them. Two further contextual pressures are worth noting: (1) the '855 patent's term is estimated to expire around September 24, 2026 (a PatSnap estimate keyed to the 2006 parent's priority), which compresses the recoverable damages window and creates incentive to license quickly; and (2) RFCyber's complaints in this wave drew Rule 12(b)(6) attacks on pre-suit willfulness and indirect infringement for failure to plead pre-suit knowledge — the same defect Judge Albright identified in RFCyber v. Apple, No. 6:21-cv-00916-ADA (W.D. Tex. Sept. 12, 2022), and the basis for Volkswagen's and Kroger's motions in the companion cases. Costco never had to litigate that issue. What remains unsourced: there is no public record of a settlement, license, or covenant not to sue between RFCyber and Costco, and no filing explaining the dismissal — the 97-day lifespan and a without-prejudice exit with no cost award are consistent with a private resolution or with a strategic retreat, but the record does not say which. Because the dismissal was without prejudice, RFCyber retains the ability to refile against Costco on the same patent through the 2026 expiry, and the August 14, 2025 with-prejudice dismissal of the Kroger companion case suggests the wave was ultimately resolved defendant-by-defendant rather than adjudicated.

I'll research this case and its related context.

RFCyber Corp. v. Costco Wholesale Corp., No. 2:24-cv-00546-JRG (E.D. Tex.)

Bottom line

This was a 97-day case that never got past the pleading stage. RFCyber filed a one-patent, one-claim complaint against Costco over the Costco App's contactless payment features on 2024-07-18, as part of a six-defendant reload of its 2020 contactless-payments campaign; Costco never answered or counterclaimed (it obtained two extensions), and RFCyber unilaterally dismissed the case without prejudice on 2024-10-18, with the Court's dismissal order entering 2024-10-23. There was no Rule 12 motion, transfer motion, stay motion, summary-judgment motion, Markman proceeding, discovery of any consequence, trial, verdict, post-trial motion, or appeal. The only substantive legal events touching the ’855 patent were earlier, in the 2020–2023 campaign and at the PTAB.

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Chronological developments

1. Pre-suit context (2020–2023): the campaign the Costco case was grafted onto

This matters because the Costco complaint did not break new legal ground: RFCyber had already litigated the ’855 patent through claim construction and a standing challenge, and had already absorbed (and survived) a PTAB attack on it (see §6).

2. Filing and initial pleadings (July–September 2024)

• 2024-07-18 — Complaint (Dkt. 1). RFCyber Corp. v. Costco Wholesale Corp., No. 2:24-cv-00546, filed in the Marshall Division, E.D. Tex., and assigned to District Judge Rodney Gilstrap. Sole patent: U.S. Patent No. 8,448,855 B1, “Method and apparatus for funding an electronic purse” (Koh et al.; App. No. 13/400,038, filed 2012-02-18 as a continuation of the ’218 patent; issued 2013-05-28). Sole accused instrumentality: the Costco App (“contactless payment functionality implemented by the Costco App”). Asserted claim: claim 9 (method for funding an e-purse). Cause of action pleaded as willful infringement. Complaint and Exhibit A: CourtListener Dkt. 1 / 1-1; full text of complaint at storage.courtlistener.com/…231708.1.0.pdf.
• 2024-07-18 — Rule 7.1 disclosure statement (identifying RFCyber Corporation as parent), AO 120 patent form filed and emailed to the PTO Director, and appearances by Alfred Ross Fabricant, Peter Lambrianakos, Vincent J. Rubino III, Richard Matthew Cowell, and Jacob Daniel Ostling (Fabricant LLP, New York) — the same team running the Apple/Google/Samsung cases.
• 2024-07-19 — Summons issued (Dkt. 9).
• 2024-07-29 — Summons returned executed (Dkt. 10) — service on Costco.
• 2024-08-13 — Costco files an unopposed application for extension of time to answer (Dkt. 11); granted 2024-08-15 (Dkt. 12).
• September 2024 (Dkt. 13–16) — Further docket activity included Costco-side appearances and a second extension of time to file answer, resolved by order on 2024-09-30 (Dkt. 16). Costco's counsel of record is recorded as Perkins Coie LLP (Marvin Craig Tyler, Ramsey M. Al-Salam, Ruben Tyler Kendrick). (PatSnap case page; RPX Insight docket)
• No answer, no counterclaims. Costco never filed a responsive pleading, so no invalidity/unenforceability counterclaims, no declaratory-judgment counterclaims, and no § 285 counterclaim ever entered the record.

Companion filings the same week (relevant because they explain the Costco filing's economics): Kroger (2:24-cv-00548), Shell/Equilon/Shell ITI (2:24-cv-00549), Starbucks (2:24-cv-00550), Walmart (2:24-cv-00551) — all 2024-07-18; Volkswagen (2:24-cv-00575/576) — 2024-07-23. All assert overlapping sets of the ’855 plus related patents. See RPX, “RFCyber Reloads Contactless Payments Campaign” (2024-07-26) and The Recorder, 2024-07-23.

3. Pre-trial motions of substance

None. No Rule 12(b)(6) motion, no § 1404(a) transfer motion (notable, given Costco's Issaquah, WA headquarters and that co-defendant Volkswagen's case was later treated as a member case in a consolidated proceeding), no § 1406 motion, no motion to stay pending IPR, no motion to sever, no early summary-judgment motion, no § 101 motion. Costco's only filings were extension requests. The Rule 41 dismissal record confirms the absence of ripe substantive relief: the Court denied “all pending requests for relief … not explicitly granted herein … as moot.”

4. Claim construction

Did not occur in this case. No Joint Claim Construction and Prehearing Statement, no Markman briefing, no Markman hearing, no claim construction order. Strategically, RFCyber had no need to relitigate construction: Judge Gilstrap had already construed the ’855 and sibling patents in the 2020-campaign cases following the 2021-10-27 hearing (see §1). Whether RFCyber would have sought to leverage those constructions against a retail-app defendant (as opposed to a handset/OS defendant) was never tested.

5. Discovery milestones

No discovery of substance. No Rule 26(f) conference or scheduling order appears on the docket, no docket control order, no infringement or invalidity contentions, no e-discovery, no depositions, no expert reports. The case ran from service (2024-07-29) to dismissal (2024-10-18) in under 90 days with two answer extensions pending. No protective-order disputes — a contrast with the 2020 campaign, where RFCyber litigated protective-order scope and third-party subpoenas to Nokia, EMVCo, GlobalPlatform and NXP during Samsung's IPR preliminary-response phase. ([Samsung IPR2021-00978 exhibit list](https://www.d

I'll research the counsel of record for RFCyber Corp. in this case.

Let me get the docket detail and the complaint's signature block, plus attorney background information.

Let me verify whether local counsel (Truelove Law Firm) appeared in this specific case, and get firm/office details.

Bottom line

RFCyber Corp.'s public docket in RFCyber Corp. v. Costco Wholesale Corp., No. 2:24-cv-00546-JRG (E.D. Tex.) reflects five attorneys of record, all from Fabricant LLP (Rye, NY) — the same team that has staffed RFCyber's entire 2020–2024 assertion campaign against Google, Samsung, LG, Apple, Visa and, in this wave, Costco, Kroger, Shell, Starbucks, Volkswagen and Walmart. No in-house counsel and no Texas local-counsel firm is shown as an attorney of record on the public docket; the case closed on RFCyber's Rule 41(a)(1)(A)(i) notice 97 days after filing, before any pro hac vice motions, scheduling order, or merits ruling.

Counsel of record for Plaintiff RFCyber Corp.

Sources: CourtListener/RECAP docket for No. 2:24-cv-00546 (https://www.courtlistener.com/docket/68956846/rfcyber-corp-v-costco-wholesale-corporation/) — complaint (ECF No. 1) and the five July 18, 2024 appearance notices (ECF Nos. 4–8, in the order listed above); Fed. Cir. No. 2024-1614 opinion (https://www.cafc.uscourts.gov/opinions-orders/24-1614.OPINION.12-17-2025_2620416.pdf); PTAB powers of attorney in IPR2022-01240 and IPR2021-00981 (both designating Rubino as lead and Lambrianakos/Fabricant/Cowell as back-up); NY attorney registration records for Fabricant (Reg. No. 2219392).

Verification caveats

• Docket-entry numbering: the case closed quickly, and the RECAP sheet confirms five appearance notices all entered 07/18/2024. CourtListener independently confirms ECF No. 6 = Rubino and ECF No. 8 = Ostling; the assignment of ECF Nos. 4, 5 and 7 among Fabricant, Lambrianakos and Cowell is inferred from that ordering, not individually verified — treat the names as confirmed and the per-entry numbers as approximate.
• Justin Kurt Truelove (Truelove Law Firm, Marshall, TX) appears on some third-party compilations (PatSnap Eureka) as plaintiff counsel for this case, and he did enter an appearance in the parallel RFCyber v. Kroger, No. 2:24-cv-00548, docket (PacerMonitor). I could not confirm a Truelove appearance in the Costco docket — the public docket shows only the five Fabricant LLP appearances, and the case was dismissed before motion practice. If Truelove was involved, it was as local counsel not of record here; do not represent him as counsel of record for Costco without pulling the PACER image of ECF Nos. 4–8.
• No local counsel / no pro hac vice record: consistent with the 97-day life of the case, the public docket shows no PHV motions, no Rule 83 certificate, and no Texas-barred local attorney of record. Fabricant LLP filed directly.
• Nothing sealed bearing on plaintiff's representation; the only non-public possibility is the civil cover sheet/JS-44 attorney list, which is not in the RECAP text.
• No in-house counsel appeared on the docket. RFCyber's CEO Sean Pan executed the PTAB powers of attorney but is not an attorney of record.
• Firm naming: contemporaneous 2024 filings use "Fabricant LLP"; by 2025–2026 the firm appears in E.D. Tex. dockets as "Fabricant, Rubino & Lambrianakos LLP" (e.g., AGIS Software Dev. v. Tyler Techs., No. 2:25-cv-00954), so the same team now appears under a renamed shingle.

Context worth flagging (does not change the counsel list)

Costco's side was staffed by Perkins Coie (Marvin Craig Tyler, Ramsey M. Al-Salam, Ruben Tyler Kendrick, Seattle/N.Y.), who appeared via the Aug. 15, 2024 notice (ECF No. 12) and obtained answer extensions (ECF Nos. 11, 15, 16) before RFCyber voluntarily dismissed on Oct. 18, 2024 (ECF No. 17). The dismissal — with each side bearing its own costs, per the Oct. 23, 2024 order (ECF No. 18) — came after the '855 patent had already been through several Apple/Samsung/Google IPRs, which is the practical explanation for the rapid retreat rather than any ruling in this case.

I'll research the counsel of record for Costco in this case.

Let me verify the defendant's counsel against the actual docket entries and firm records.

Let me confirm the specific docket entries where defendant's counsel appeared, and research each attorney.

Counsel of Record for Defendant Costco Wholesale Corp.

Bottom line: Costco was represented by Perkins Coie LLP, appearing through three attorneys — Ramsey M. Al-Salam (Seattle), M. Craig Tyler (Austin), and Ruben Tyler Kendrick. No in-house Costco counsel and no other firms appear on the docket. The appearances were filed in mid-August 2024 (docket entry in the No. 12–13 range, entered 08/15/2024), roughly four weeks after service, and Costco never filed an answer or a motion — the case ended on RFCyber's Rule 41(a)(1)(A)(i) notice (Dkt. 17) and Judge Gilstrap's dismissal order (Dkt. 18).

Per-attorney notes

Ramsey M. Al-Salam — lead counsel. Perkins Coie partner in Seattle, Costco's home forum and the firm's headquarters. He is the natural lead for a retailer-side patent defense in a campaign like RFCyber's, and the Seattle office affiliation in the counsel tables is consistent with lead-counsel designation rather than local-counsel designation. Caveat: I was unable to pull a firm bio page or a reported decision in this session to independently corroborate his specific patent case history; treat the "lead counsel" label as an inference from office and firm, not from a caption reading "Lead Attorney."

M. Craig Tyler — Texas/local counsel. Verified independently: Perkins Coie (now practicing under the Ashurst Perkins Coie brand following the 2025 combination) partner in Austin, Texas; University of Texas J.D. 1995; mechanical engineering undergraduate degree; registered patent attorney. His published profile describes him as a first-chair IP trial lawyer who has tried patent cases in Texas, California, Delaware, and Washington, including a "landmark patent litigation win for AUO and Hisense in the U.S. District Court for the Eastern District of Texas," and prior lead roles in Tekelec, Inc. v. Verint Systems and Nuance Communications v. ABBYY USA Software House. He is Chambers USA–ranked (IP, Texas) and an IAM Patent 1000 honoree. His most recent E.D. Tex. appearance role is exactly the local-counsel posture seen here — e.g., a Feb. 25, 2025 notice of appearance for Equinix in Valtrus Innovations v. Equinix, No. 2:25-cv-00016 (Gilstrap, J.).
Sources: Perkins Coie profile, Ashurst Perkins Coie profile, Chambers profile, Justia docket – Valtrus v. Equinix.

Ruben Tyler Kendrick — supporting/associate counsel. Appears in the same PACER-derived counsel table as Al-Salam and Tyler, listed to the Seattle office. I could not verify this name against a firm biography, a state bar record, or a contemporaneous filing in this session, so I am flagging it rather than asserting it. It is plausible as a Perkins Coie associate staffed to a Costco matter, but before relying on it (e.g., for a service list or a conflicts check) confirm against the actual appearance document on PACER.

Sourcing and verification limits — please read

1. The primary source is the docket, and the underlying filings are not in the free RECAP collection. The CourtListener docket for No. 2:24-cv-00546 (link) lists the defendant-side appearance(s) around 08/15/2024 but shows several items as "not yet in the RECAP collection," so I could not open the appearance PDFs and read the signature blocks. The three names come from litigation-intelligence counsel tables built off PACER (PatSnap/Eureka, reproduced on their case page, plus corroboration from the parallel docket pattern). That is good but second-hand evidence; a PACER pull of the appearance entries (Dkts. 12–15 range) would settle it definitively.
2. Roles are inferred. Nothing in what I could access designates "lead" vs. "local" counsel on the record. My assignment of Al-Salam = lead and Tyler = local/Texas counsel rests on office geography (Seattle HQ vs. Austin) and on Tyler's documented pattern of Texas appearances — a reasonable but not record-based inference.
3. No answer, no motion, no in-house appearance. Costco's responsive deadline was extended twice (Dkt. 11 unopposed application, granted 08/15/2024; further extension and order at Dkts. 15–16, 09/30/2024), and the case was dismissed before any responsive pleading was filed. The record therefore contains no substantive Costco filing authored by any of these attorneys — only appearances and extensions.
4. Firm naming. At the time of this case the firm was Perkins Coie LLP. Firm-hosted bios now resolve to Ashurst Perkins Coie following the 2025 combination; cite the firm as Perkins Coie LLP for 2024 filings.
5. Do not assume continuity. Because the dismissal was without prejudice, RFCyber may refile against Costco; if it does, Costco's 2024 appearance lineup is a reasonable predictor but is not binding on a new case, and counsel may differ (Costco has used different firms across its various patent matters — e.g., Domingo M. Llagostera in M4siz Ltd. v. Costco, W.D. Tex. No. 6:21-cv-00760, and Samhitha M. Medatia in the 2026 E.D. Tex. case Local Interest, LLC v. Costco, No. 2:26-cv-00265, illustrating that Costco does not use a single fixed firm).