VirtaMove Corp. v. Hewlett Packard Enterprise

The patent infringement lawsuit VirtaMove Corp. v. Hewlett Packard Enterprise involves VirtaMove Corp., a Canadian software company specializing in application migration and modernization, as the plaintiff, and Hewlett Packard Enterprise (HPE), a multinational information technology company, as the defendant. VirtaMove develops subscription-based software designed to automate the migration of Windows applications to newer operating systems, in-house servers, or cloud environments, including its V-Migrate container-based migration tool. HPE, based in Spring, Texas, offers a wide range of IT infrastructure products, services, and solutions, including servers, storage, networking, AI, containerization software, and hybrid cloud platforms like HPE GreenLake and HPE Private Cloud AI. The accused products, services, or technologies in this litigation are HPE's computing systems that allegedly infringe VirtaMove's patents through their use of containerization and container orchestration technology, specifically mentioning products that incorporate Docker and Kubernetes.

The lawsuit asserts U.S. Patent No. 7,784,058, which relates to operating system libraries and instanced computing environments, and U.S. Patent No. 7,519,814, which covers a system for containerization of application sets. These patents are central to modern DevOps pipelines, microservices architectures, and cloud-native deployments. The procedural posture of this case places it in the U.S. District Court for the Eastern District of Texas, Marshall Division, with Judge Rodney Gilstrap assigned. The Eastern District of Texas is a historically significant venue for patent litigation, consistently ranking as a top district for overall and NPE (Non-Practicing Entity) patent filings due to its plaintiff-friendly reputation and tendency for high damage awards.

This case is notable as it is part of an aggressive litigation campaign launched by VirtaMove in 2024 against several major technology companies, including IBM, Google, and Amazon, all asserting the same two patents related to containerization and container orchestration. While VirtaMove identifies itself as an operating company, Unified Patents has characterized it as an NPE. The assertion of these patents against widely used open-source containerization technologies like Docker and Kubernetes highlights a broader industry impact, leading to parallel challenges such as Unified Patents filing ex parte reexamination proceedings against the '058 patent and Google challenging the '814 patent in Federal Circuit, which was denied. The case also saw HPE and VirtaMove reach a settlement in principle in June 2025, although VirtaMove's claims against IBM remain pending, and Google successfully narrowed VirtaMove's lawsuit against it in California. IBM and HPE also filed counterclaims alleging inequitable conduct, which survived a motion to dismiss. The venue choice of the Eastern District of Texas is particularly strategic for patent plaintiffs due to its historical success rates and faster time to trial, although VirtaMove has also filed suits in the Northern District of California and Western District of Texas.

VirtaMove Corp. v. Hewlett Packard Enterprise Co., filed in the U.S. District Court for the Eastern District of Texas (Case No. 2:24-cv-00093-JRG), asserted U.S. Patent Nos. 7,784,058 and 7,519,814. The case was eventually consolidated with VirtaMove's parallel suit against International Business Machines Corp. (IBM). The litigation concluded with a settlement between VirtaMove and HPE in June 2025, leading to its termination in November 2025.

Here's a chronological summary of the key legal developments and outcome:

Filing & Initial Pleadings:

• February 9, 2024: VirtaMove Corp. filed the patent infringement complaint against Hewlett Packard Enterprise Co. (HPE) in the Eastern District of Texas.
• March 2024 - April 2024: HPE received multiple unopposed extensions to file its answer to the complaint.
• June 5, 2024: In the consolidated case, IBM filed its Answer, Affirmative Defenses, and Counterclaims to VirtaMove's Second Amended Complaint, denying infringement and asserting invalidity. HPE also filed an Amended Answer and Counterclaims, which included an inequitable conduct counterclaim.

Pre-trial Motions of Substance:

• October 17, 2024: The U.S. District Court for the Eastern District of Texas, presided over by Judge Rodney Gilstrap, granted in part and denied in part HPE's motion to dismiss VirtaMove's claims for past damages. The court found VirtaMove's allegations regarding marking obligations for the '058 patent to be conclusory and dismissed those claims without prejudice. However, the court denied the motion to dismiss for the '814 patent, finding VirtaMove sufficiently pleaded that no marking obligation applied.
• March 24, 2025: VirtaMove filed motions to dismiss inequitable conduct counterclaims asserted by both IBM and HPE, arguing a lack of particularity in pleading.
• March 24, 2025: Judge Gilstrap denied VirtaMove's motions to dismiss the inequitable conduct counterclaims brought by HPE and IBM, ruling that the defendants had provided sufficient factual detail for these claims to proceed.

Discovery Milestones with Strategic Significance:

• October 23, 2024: Court documents indicate that discovery was underway, with VirtaMove having identified witnesses to IBM during venue discovery and supplemented its Rule 26 disclosures, including the production of consulting agreements.

Parallel PTAB IPR/PGR Proceedings:

• September 23, 2024: Unified Patents filed an ex parte reexamination proceeding against U.S. Patent No. 7,784,058, which is one of the patents asserted against HPE.
• October 24, 2024: The Central Reexamination Unit (CRU) granted Unified Patents' request for ex parte reexamination of the '058 patent, finding substantial new questions of patentability for claims 1 and 12.
• June 6, 2025: VirtaMove Corp. provided its mandatory notices for an inter partes review (IPR2025-00850) challenging U.S. Patent No. 7,519,814. Another IPR, IPR2025-00487, was filed against the '814 patent but was not instituted for procedural reasons.

Settlement, Dismissal, Judgment, or Appeal – The Final Disposition:

• June 17, 2025: Hewlett Packard Enterprise Co. and VirtaMove Corp. reached a settlement in principle to resolve their patent infringement dispute. They jointly requested a 30-day stay from the court to finalize the settlement agreement and file dismissal papers.
• November 17, 2025: The case was officially terminated.

While this specific case against HPE concluded via settlement, VirtaMove was involved in other parallel litigations in Texas, including cases against Google and Amazon, where venue transfer orders to the Northern District of California were issued and later affirmed by the Federal Circuit in September 2025 following VirtaMove's unsuccessful mandamus petitions.

Here is the counsel of record representing VirtaMove Corp. in VirtaMove Corp. v. Hewlett Packard Enterprise:

Lead Counsel

• Reza Mirzaie (Lead Counsel)
  • Firm: Russ August & Kabat (Los Angeles, CA)
  • Note: Mr. Mirzaie is a partner at Russ August & Kabat and focuses on intellectual property litigation, particularly patent and trade secret disputes across various technologies.
• Daniel Benjamin Kolko (Lead Counsel)
  • Firm: Russ August & Kabat (Los Angeles, CA)
  • Note: Mr. Kolko is a partner at Russ August & Kabat, specializing in complex patent and technology litigation, and has experience representing both plaintiffs and defendants.
• Qi Tong (Lead Counsel)
  • Firm: Russ August & Kabat (Los Angeles, CA)
  • Note: Ms. Tong is an attorney at Russ August & Kabat with experience in intellectual property litigation.
• Jacob Buczko (Lead Counsel)
  • Firm: Russ August & Kabat (Los Angeles, CA)
  • Note: Mr. Buczko is an attorney at Russ August & Kabat, focusing on patent litigation.
• Jonathan Ma (Lead Counsel)
  • Firm: Russ August & Kabat (Los Angeles, CA)
  • Note: Mr. Ma is an attorney at Russ August & Kabat, involved in intellectual property and complex commercial litigation.
• Neil Alan Rubin (Lead Counsel)
  • Firm: Russ August & Kabat (Los Angeles, CA)
  • Note: Mr. Rubin is an attorney at Russ August & Kabat, with a practice that includes patent litigation.
• James Shrin Tsuei (Lead Counsel)
  • Firm: Russ August & Kabat (Los Angeles, CA)
  • Note: Mr. Tsuei is an attorney at Russ August & Kabat, focusing on intellectual property and complex litigation matters.
• Christian W Conkle (Lead Counsel)
  • Firm: Russ August & Kabat (Los Angeles, CA)
  • Note: Mr. Conkle is a partner at Russ August & Kabat, specializing in patent, copyright, and trade secret litigation.
• James A Milkey (Lead Counsel)
  • Firm: Russ August & Kabat (Los Angeles, CA)
  • Note: Mr. Milkey is an attorney at Russ August & Kabat, with experience in various areas of intellectual property litigation.
• Amy Elizabeth Hayden (Lead Counsel)
  • Firm: Russ August & Kabat (Los Angeles, CA)
  • Note: Ms. Hayden is an attorney at Russ August & Kabat, practicing intellectual property litigation.
• Marc A Fenster (Lead Counsel)
  • Firm: Russ August & Kabat (Los Angeles, CA)
  • Note: Mr. Fenster is a founding partner of Russ August & Kabat and a highly recognized patent litigator with extensive experience in high-stakes intellectual property disputes.

Local Counsel

• Andrea Leigh Fair (Local Counsel)
  • Firm: Ward, Smith & Hill, PLLC (Longview, TX)
  • Note: Ms. Fair is a partner at Ward, Smith & Hill, PLLC, a Texas-based firm known for its robust patent litigation practice in the Eastern District of Texas.

The following counsel represent Hewlett Packard Enterprise in VirtaMove Corp. v. Hewlett Packard Enterprise, Case No. 2:24-cv-00093 (E.D. Tex.):

Outside Counsel:

• Emily F. Deer (Counsel)

  • Firm: Baker Botts LLP - Dallas
  • Note: Representing Hewlett Packard Enterprise.

• Morgan Grissum Mayne (Counsel)

  • Firm: Baker Botts LLP - Dallas
  • Note: Representing Hewlett Packard Enterprise.

• Hien Khanh Lien (Counsel)

  • Firm: Baker Botts LLP
  • Note: Representing Hewlett Packard Enterprise.

• Katharine Mary Burke (Counsel)

  • Firm: Baker Botts LLP - D.C.
  • Note: Representing Hewlett Packard Enterprise.

• Douglas Mark Kubehl (Counsel)

  • Firm: Baker Botts LLP - Dallas
  • Note: Representing Hewlett Packard Enterprise.

• Jennifer Haltom Doan (Counsel)

  • Firm: Haltom & Doan
  • Note: Representing Hewlett Packard Enterprise.

• Joshua Reed Thane (Counsel)

  • Firm: Haltom & Doan
  • Note: Representing Hewlett Packard Enterprise.

In-House Counsel:

• Brett Alten (Senior Vice President, Deputy General Counsel, and Chief Intellectual Property Counsel)

  • Firm: Hewlett Packard Enterprise (in-house)
  • Note: Focuses on all aspects of HPE's intellectual property strategy, including patent portfolio development, monetization, and litigation; previously held IP leadership roles at Tesla, Dropbox, and Apple.

• Grant Ritz (Director and AGC for IP Transactions, also referred to as Senior Counsel, IP Litigation)

  • Firm: Hewlett Packard Enterprise (in-house)
  • Note: Manages a team of patent attorneys for IP-intensive transactions and has held various roles in HP/HPE involving patent development, transactions, disputes, and IP litigation.

• Angela Johnson (IP Litigation Counsel)

  • Firm: Hewlett Packard Enterprise (in-house)
  • Note: Manages outside counsel on patent litigation cases and works on assertions and policy reform topics in-house.