XR Communications, LLC d/b/a Vivato Technologies v. Asustek Computer, Inc.

I'll research this case across multiple sources.

Case Overview & Background

Parties. Plaintiff‑appellant XR Communications, LLC, doing business as Vivato Technologies ("Vivato"), is a Delaware LLC with a principal place of business in Venice, California, and the owner by assignment of the asserted patents (see XR Commc'ns v. Asus Computer Int'l, No. 2:17‑cv‑02948‑AG‑JCG, Compl. ¶ 10). The "Vivato" name traces to Vivato, Inc., a Spokane Valley/San Francisco venture‑backed Wi‑Fi equipment startup founded in 2000 that raised more than $65–80 million for phased‑array "smart antenna" base stations, then shut down in 2005 and sold its patent portfolio (Spokesman‑Review, Sept. 8, 2006, https://www.spokesman.com/stories/2006/sep/08/group-hopes-to-revive-vivato/). Stanford's NPE Litigation Database classifies XR/Vivato as a "failed startup" asserter (https://npe.law.stanford.edu/patent/[10715235](/patent/10715235)). Defense counsel characterized it bluntly: XR "adopt[ed] the name of Vivato, Inc., a failed wireless technology company" to "resurrect" two‑decade‑old claims against modern products (Defs.' Opening Claim Construction Br., In re XR Commc'ns, quoted at IPR2018‑00762, Ex. 1013). XR was represented by Russ August & Kabat (Marc A. Fenster, Reza Mirzaie, Brian D. Ledahl, Minna Chan, James Pickens); Appellee ASUS Computer International, Inc. and ASUSTeK Computer, Inc. — the Fremont, California and Taipei entities through which ASUS sells networking gear in the U.S. — were represented by Kasowitz Benson Torres (Jonathan K. Waldrop, Marcus Barber, John Downing).

Patents and accused technology. The case is part of a ten‑defendant, 29‑claim assertion campaign over three 802.11 beamforming patents. U.S. Patent No. 7,062,296 (issued June 13, 2006; priority Nov. 4, 2002), Forced Beam Switching in Wireless Communication Systems Having Smart Antennas — a smart‑antenna access point that uses uplink feedback to decide whether a client should move to a different downlink beam and then selectively allow/disallow that beam association (asserted claim 33). U.S. Patent No. 7,729,728 (issued June 1, 2010), same title, a continuation sharing the '296 specification — claimed as a system with a phased‑array antenna and access point performing the same forced‑beam‑switching logic (asserted claim 16). U.S. Patent No. 6,611,231 (priority Apr. 27, 2001), Wireless Packet Switched Communication Systems and Networks Using Adaptively Steered Antenna Arrays — an adaptive antenna array with "control logic" that places transmission peaks/nulls based on routing information, plus "search receiver logic" that updates that routing information from cross‑correlated received signal information (asserted claims 1–9, 12). ASUS's accused products were 802.11ac MU‑MIMO routers and access points — the RT‑AC88U, RT‑AC87U, RT‑AC3100, RT‑AC5300, ROG Rapture GT‑AC5300, RT‑AC86U, RT‑ACRH13, RT‑AC58U, BRT‑AC828, CM‑32, and EA‑AC87 — with infringement mapped almost entirely onto standardized 802.11ac behavior: VHT Compressed Beamforming feedback frames and Group ID Management frames (Compl. ¶¶ 12–19, 30–38, XR Commc'ns v. Asus, No. 2:17‑cv‑02948). In other words, the theory was that practicing the Wi‑Fi standard infringes.

Procedural posture, venue, and why it matters. XR filed four C.D. Cal. suits on April 19, 2017, including No. 2:17‑cv‑02948 against ASUS, originally assigned to Judge Andrew J. Guilford with Magistrate Judge Jay C. Gandhi in the Los Angeles/Western Division (https://www.docketalarm.com/cases/California_Central_District_Court/

Bottom line first

The ASUS action was not tried. It was a stayed-then-collateral-estoppel case: ASUS won in the district court without a Markman hearing, without expert discovery on infringement, and without a trial, because (1) the PTAB cancelled every asserted claim of the ’296 and ’728 patents, and (2) the ’231 patent had already been held invalid as indefinite in a parallel N.D. Cal. action, which the C.D. Cal. court applied offensively as collateral estoppel. The Federal Circuit affirmed on 2023-05-18 in a two-paragraph per curiam nonprecedential decision.

One important data caveat: the case metadata in this assignment records the disposition as "appeal dismissed." That does not match the primary source. The Federal Circuit's opinion in the consolidated appeals (No. 2022-1785 et al., decided 2023-05-18) expressly states "AFFIRMED," and 22-1792 is listed among the consolidated appeals. See XR Commc'ns, LLC v. D-Link Sys., Nos. 2022-1785, -1787, -1789, -1790, -1791, -1792 (Fed. Cir. May 18, 2023) (nonprecedential), https://cases.justia.com/federal/appellate-courts/cafc/22-1785/22-1785-2023-05-18.pdf. The "dismissed" coding in some commercial databases appears to be an artifact (possibly from the administrative closure of the district docket, or from a partial dismissal of a party). The operative outcome is affirmance. I flag this rather than silently repeating the metadata.

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Chronology

1. Filing and initial pleadings (2017)

The case was then related/consolidated with XR Communications v. D-Link Systems, No. 8:17-cv-00596-DOC-JDE (lead), and eventually reassigned to Judge David O. Carter.

2. Stay pending IPR — the dispositive pre-trial event (2018)

Why this mattered strategically: the stay froze the ASUS case before claim construction and before any substantive discovery. Vivato's infringement theory (802.11ac MU-MIMO Group ID Management / VHT Compressed Beamforming feedback mapping onto the "forced beam switching" claims) never had to be tested in the district court.

3. PTAB outcomes (2019) — the ’296 and ’728 patents are erased

• IPR2018-00725 (Aruba, ’296): Final Written Decision 2019-09-04, all challenged claims unpatentable.
• IPR2018-00764 (Cisco, ’296): Final Written Decision 2019-09-16, all challenged claims unpatentable; Patent Owner's motion to amend denied and Petitioner's motion to strike denied. https://www.docketalarm.com/cases/PTAB/IPR2018-00764/
• The ’296 asserted claims were 1–2, 4–7, 17–18, 20–23, 33, and 35–38; the ’728 asserted claim was claim 16. All were cancelled. The remaining ’296/’728 proceedings (-00726, -00763, -01017, -01018) likewise terminated in cancellation of the challenged claims.
• The ’231 patent survived the three petitions against it — every claim emerged undisturbed. (Press reporting notes that Cisco appealed from one of the ’231 proceedings; I was not able to verify the appellate docket number or outcome for that IPR appeal, so I flag it as unsourced.)

4. Parallel N.D. Cal. case supplies the ’231 kill shot (2021)

XR Communications, LLC v. Ruckus Wireless, Inc., No. 3:18-cv-01992-WHO (N.D. Cal.):

• 2021-09-01 — Claim construction order (Dkt. 191). The only disputed term was "search receiver logic." Judge William H. Orrick held that, although the term lacks the word "means," the Williamson presumption was rebutted, § 112 ¶ 6 applied, and the specification disclosed no corresponding structure for the claimed function of "updating said routing information." The term was therefore indefinite under § 112 ¶ 2. The court rejected Vivato's reliance on "search receiver 164" (Fig. 18) and steps 610/612 (Fig. 22), and rejected the argument that "search receiver" connoted a known class of structures (distinguishing Egenera v. Cisco).
• Final judgment of invalidity entered (Dkts. 193, 194), appealed as Nos. 22-1125 and 22-1141.

Note: the ASUS case itself never reached Markman. The only claim construction that bound ASUS was Judge Orrick's.

5. Stays lift; ASUS wins on the pleadings (2021–2022)

• Once the ’296/’728 IPRs terminated, the C.D. Cal. stays were lifted and the campaign resumed (reported in Stays Lifted, Wireless Networking Campaign Roars To Life Against Both Existing And New Defendants, Mondaq; I did not verify the exact lift date).

• 2022-01-04 — Judge Carter grants ASUS's motion for judgment on the pleadings as to all ’231 claims, on collateral estoppel from the N.D. Cal. indefiniteness judgment (Dkt. 274 in lead case 8:17-cv-00596; underlying N.D. Cal. Dkts. 191, 193, 194). No markman; no discovery on the merits; no expert reports; no summary judgment practice of substance.

• 2022-04-15 — Final judgment (Dkt. 46 in 2:17-cv-02948). Two independent grounds:

  1. All asserted ’296 and ’728 claims were cancelled by PTAB FWDs in IPR2018-00725, -00726, -00763, -00764, -01017, and -01018 → those claims dismissed.
  2. All ’231 claims dismissed on collateral estoppel.

  The judgment expressly preserved the parties' rights to renew the ’231 claims if the N.D. Cal. indefiniteness judgment were reversed. https://www.docketalarm.com/cases/California_Central_District_Court/2--17-cv-02948/XR_Communications_LLC_v._Asus_Computer_International_et_al/docs/46.pdf

There was no trial, no verdict, no JMOL/new-trial motion, no fee motion, and no damages or license in this case.

6. Appeal (2022–2023)

Companion appeal: XR Communications v. ARRIS Solutions, Inc., No. 22-1125 (Fed. Cir. May 18, 2023) — the court affirmed Judge Orrick's § 112 ¶ 6 / indefiniteness holding on "search receiver logic," rejecting Vivato's arguments that (a) the term connoted sufficient structure and (b) Figures 18/22 supplied corresponding structure. https://law.justia.com/cases/federal/appellate-courts/cafc/22-1125/22-1125-2023-05-18.html. Because 22-1125 affirmed, the collateral-estoppel premise of the ASUS judgment held, and 22-1792 was a foregone conclusion — the Federal Circuit treated it as such and issued a two-paragraph opinion with no independent analysis.

7. Counsel of record on appeal

• Appellant (Vivato): Marc A. Fenster, Reza Mirzaie, Brian D. Ledahl, Minna Chan, James N. Pickens (Russ August & Kabat, Los Angeles). The firm ran the entire campaign.
• ASUS: Jonathan K

I'll research the counsel of record for XR Communications across the Federal Circuit appeal and the underlying district court litigation.

Let me pull the Federal Circuit docket details and the district court record.

Let me retrieve the actual docket entries and attorney appearances.

Counsel of Record — Plaintiff-Appellant XR Communications, LLC d/b/a Vivato Technologies

Fed. Cir. No. 2022-1792 (appeal from C.D. Cal. No. 2:17-cv-02948-AG-JCG, consolidated with lead case No. 8:17-cv-00596-DOC-JDE)

Bottom line

XR Communications was represented on appeal exclusively by its long-time litigation boutique, Russ August & Kabat LLP of Los Angeles — the same firm that has handled the entire Vivato/X R patent campaign since the 2017 district court complaints. There was no separate local counsel and no in-house appearance on the Federal Circuit docket; RAK served as both appellate and (in the district court) trial counsel. Marc A. Fenster argued; Reza Mirzaie is the attorney the Federal Circuit docket identifies in its "represented by" field. No filings relating to counsel appear to be sealed — the appearances are public docket entries.

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Individual appearances

District-court counsel who did not enter a Federal Circuit appearance

• Philip X. Wang (Russ August & Kabat, Los Angeles) — signed the May 9, 2022 Notice of Appeal on behalf of XR (filed in both 2:17-cv-02948-DOC(JDEx) and the lead case 8:17-cv-00596-DOC(JDEx)), which is why he surfaces in appellate-adjacent records. He is not listed on Fed. Cir. Dkt. 6, so he was not counsel of record on the appeal. He is a registered patent attorney (Reg. No. 74,621) and was lead counsel for Vivato before the PTAB in IPR2022-00367.
• Christian W. Conkle and Paul A. Kroeger (Russ August & Kabat) — appear for XR in the later W.D. Tex. suits (6:21-cv-00622; 6:23-cv-00651) and, for Conkle, as PTAB backup counsel. Neither appears on the 2022-1792 docket.

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Procedural detail worth noting on the appearances

• Fed. Cir. Dkt. 2 (May 23, 2022) consolidated 22-1785 (lead) with 22-1787, -1789, -1790, -1791 and -1792 (member), with all documents to be filed in the lead appeal only; Dkt. 3 is the clerk's note-to-file to that effect.
• Fed. Cir. Dkt. 6 (June 15, 2022) was XR's Entry of Appearance for Fenster, Mirzaie, Ledahl, Gajarsa, Chan and Pickens. Dkt. 7 (June 17, 2022) is a Notice of Non-Compliance directing correction of XR's entry of appearance, certificate of interest and docketing statement; corrected filings followed. This is the only counsel-related hiccup on the docket.

One correction to the case metadata

The metadata here records the termination basis as "appeal dismissed." The primary record does not support that characterization for 22-1792: the consolidated appeals were disposed of by a nonprecedential per curiam opinion and judgment dated May 18, 2023 affirming the C.D. Cal. judgment, on the strength of the companion N.D. Cal. affirmance in Nos. 22-1125/22-1141 (XR Commc'ns v. D-Link Sys., Nos. 2022-1785 et al. (Fed. Cir. May 18, 2023); the '231 patent claims 1–9 and 12 held invalid as indefinite). The May 18, 2023 "closed" date in the metadata matches that judgment. "Appeal dismissed" therefore looks like a litigation-database artifact (Patsnap/Docket Alarm-style records), not a Fed. Cir. R. 42(b) dismissal — though I could not pull the actual 22-1792 closing order text to rule out a separate dismissal as to a single member appeal.

Sourcing gaps (flagged, not guessed)

• I did not retrieve the actual PACER docket sheet for 22-1792; the appearance details above come from the Federal Circuit docket text as mirrored on UniCourt and the Ex Parte AI docket summary, plus the May 18, 2023 opinion's counsel line (via Vlex/HallApproved/Cetient reproductions).
• Robert Gajarsa's current firm and bar status are unverified.
• Individual attorney biographies (bar admissions, notable prior patent trials) were not retrievable within this session; the experience notes above are limited to conduct documented in the XR/Vivato docket record itself rather than firm marketing material. If you want partner/associate status and representative matters verified, the RAK firm team pages and the PTAB mandatory notices in IPR2018-00701/00725/00762/01016/01017 (the Aruba/Cisco/Ruckus challenges to the '296 and '728 patents) are the most reliable next sources.

I'll research counsel for ASUS at both the district court and Federal Circuit levels.

Counsel of record — ASUS Computer International & ASUSTeK Computer, Inc.

Bottom line: ASUS was represented throughout by a single firm — Kasowitz Benson Torres LLP (formerly Kasowitz, Benson, Torres & Friedman), out of its Silicon Valley office in Redwood Shores, California. There was no separate local counsel, no in-house attorney of record, and the same three-lawyer core team carried the case from the 2017 district court pleadings through the 2023 Federal Circuit affirmance. This completes the sentence that was cut off in the prior section ("ASUS: Jonathan K…").

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1. Federal Circuit — No. 22-1792 (2022–2023)

Source for the appellate appearances: XR Commc'ns, LLC v. D-Link Sys., Nos. 2022-1785, -1787, -1789, -1790, -1791, -1792 (Fed. Cir. May 18, 2023) (nonprecedential) — "JONATHAN K. WALDROP, Kasowitz Benson Torres LLP, Redwood Shores, CA, for defendants-appellees ASUS Computer International, Asustek Computer, Inc. Also represented by MARCUS BARBER, JOHN DOWNING." https://cases.justia.com/federal/appellate-courts/cafc/22-1785/22-1785-2023-05-18.pdf. Note that 22-1792 was consolidated into 22-1785 on 2022-05-23 (Fed. Cir. Dkt. 2/3), so the operative appearances were filed only in the lead appeal.

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2. District court — C.D. Cal. No. 2:17-cv-02948-AG-JCG (2017–2022)

Docket cites via the Patexia docket mirror for 2:17-cv-02948 ("ANSWER to Amended Complaint/Petition 35 with JURY DEMAND filed by Defendants Asus Computer International, AsusTek Computer Inc..(Waldrop, Jonathan)"; "NOTICE of Appearance filed by attorney Darcy L Jones…"), https://services.patexia.com/lawsuits/XR-Communications-LLC-v-Asus-Computer-International-et-al-id-75297/documents.

The 2022-01-04 judgment-on-the-pleadings win (Dkt. 274 in lead case 8:17-cv-00596) and the 2022-04-15 final judgment (Dkt. 46 in 2:17-cv-02948) were obtained by this same Kasowitz team; the final judgment itself is at https://www.docketalarm.com/cases/California_Central_District_Court/2--17-cv-02948/XR_Communications_LLC_v._Asus_Computer_International_et_al/docs/46.pdf.

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3. Negative findings — what I checked and did not find

• No local counsel. Kasowitz's Redwood Shores attorneys are California-barred (Waldrop SBN 297903; Jones SBN 309474), which satisfied C.D. Cal.'s local-counsel rule without a separate local firm. No second firm appears in any ASUS filing I located.
• No in-house counsel of record. No ASUS legal-department attorney entered an appearance in either the district court or the Federal Circuit.
• No change of counsel / no prior firm. Waldrop's appearance (2017-07-24) preceded ASUS's motion to dismiss (Dkt. 25) and its answer, so Kasowitz was ASUS's counsel from the start of the litigation rather than a substitution. The earlier answer filed pro se / by another firm scenario does not apply here.
• No ASUS-filed IPRs. The six IPRs that wiped out the '296 and '728 claims were filed by Aruba, Cisco and the Ruckus/ARRIS/Netgear/Belkin group, not ASUS. I found no ASUS-filed or ASUS-joined IPR against the '296, '728 or '231 patents, meaning there is no separate PTAB counsel for ASUS to report.
• Sealed/omitted materials. Dkt. 25 (ASUS's motion to dismiss) and the briefing on the motion for judgment on the pleadings are not freely available in full text; I could therefore not confirm every attorney in the signature blocks of those briefs. If complete confirmation of the district-court team is needed, the pull is Dkts. 25 and 37 in 2:17-cv-02948 and the MJOP papers underlying Dkt. 274 in 8:17-cv-00596.

4. Cross-check against the earlier sections

Nothing here contradicts the previously generated chronology. Two small points of alignment: (a) the prior section's counsel list for appellant Vivato (Fenster, Mirzaie, Ledahl, Chan, Pickens of Russ August & Kabat) matches the Federal Circuit opinion's counsel line, which also lists Robert Gajarsa in the June 2022 entry of appearance — he appears on the docket but not in the printed opinion, so he is a docketed-but-not-arguing appellate counsel for Vivato; (b) the metadata's "appeal dismissed" coding flagged earlier remains inconsistent with the "AFFIRMED" disposition, and the appellee-side counsel record above is drawn from the affirmance opinion itself, further confirming the appeal was decided on the merits rather than dismissed.