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Technology
9 min read
Areas of Expertise :
Patent, Software, Software Engineering, Intellectual Property, Damages
Published Date:
Last Modified Date:
Jurisdiction:
Federal. Fifth Circuit
Court:
In July 2018, Wapp Tech Limited Partnership and Wapp Tech Corp. filed a patent infringement action against Micro Focus International plc in the U.S. District Court for the Eastern District of Texas. The court later dismissed Micro Focus International plc for lack of personal jurisdiction, while amended claims continued against five affiliated Micro Focus entities. Wapp alleged that enterprise testing products, including LoadRunner and Performance Center, infringed three patents involving mobile application performance testing. The litigation addressed patent claim construction, accused source-code functions, software architecture, infringement, patent validity, and damages.
In March 2021, a jury found that the five Micro Focus entities infringed at least one asserted claim and found willful infringement as to each of the three asserted patents. The jury awarded Wapp $172,554,269 in damages. Although the verdict included willfulness findings, the court declined to enhance the award after concluding that Micro Focus’s conduct did not meet the standard for egregious infringement. Final judgment for $172,554,269 was entered on April 22, 2021. In July 2021, the parties reported a settlement under which Micro Focus agreed to pay $67.5 million in exchange for a fully paid-up, worldwide, irrevocable license covering the asserted patents. They filed a joint motion to dismiss in September 2021, and the court dismissed the action with prejudice on November 23, 2021.
Wapp Tech Limited Partnership and Wapp Tech Corp. filed a patent infringement action against Micro Focus International plc in the U.S. District Court for the Eastern District of Texas. The complaint alleged that enterprise performance-testing products, including LoadRunner and Performance Center, infringed three patents concerning mobile application development and testing under simulated network conditions. Wapp sought damages and other relief for the alleged unauthorized use of the patented technology.
The court dismissed Micro Focus International plc for lack of personal jurisdiction. Wapp then proceeded with amended claims against five related entities connected to the accused Micro Focus products. During the later trial proceedings, the five entities were collectively referred to as Micro Focus.
The case went to a jury trial in March 2021, with each side receiving 10.5 hours to present evidence. Wapp presented Dr. Sam Malek on technical infringement issues and Roy Weinstein on damages. Micro Focus presented Dr. Matthew Shoemake as its technical expert on the accused software and noninfringement, Clarke Nelson on damages, and Dr. Daniel Van Der Weide on patent invalidity.
With limited trial time remaining, Micro Focus conceded its anticipation, obviousness, and enablement defenses. It sought to continue with its written-description defense, but the court granted Wapp judgment as a matter of law on validity and instructed the jury to disregard the invalidity testimony. On March 5, 2021, the jury found that Micro Focus infringed at least one asserted claim, found willful infringement as to each of the three asserted patents, and awarded Wapp $172,554,269 in damages.
Following the verdict, Wapp moved for enhanced damages under the standard established in Halo Electronics, Inc. v. Pulse Electronics, Inc. The court reviewed the totality of the circumstances and the Read factors but concluded that Micro Focus’s conduct did not meet the standard for egregious infringement required to increase the award. It cited Micro Focus’s good-faith defenses and found no litigation misconduct that justified enhancement. The court denied Wapp’s motion and entered final judgment for the jury’s original $172,554,269 award.
On July 15, 2021, Wapp and Micro Focus entered into a binding settlement term sheet addressing a global settlement, patent license, and release. That same day, the parties filed a joint notice of settlement and requested a stay of all deadlines and proceedings. On July 16, 2021, the court granted the request and stayed the remaining proceedings, deadlines, and execution of the $172,554,269 judgment. Under the agreement, Micro Focus was required to pay $67.5 million in exchange for a fully paid-up, worldwide, irrevocable license covering the asserted patents.
The binding term sheet became the final settlement agreement on September 4, 2021, because the parties did not execute a longer-form agreement within the specified negotiation period. On September 17, they filed a joint motion requesting dismissal of the litigation. The proposed dismissal would conclude the case without appellate review of the jury verdict or the court’s post-trial rulings.
On November 23, 2021, the court granted the parties’ joint request and dismissed the action with prejudice. It denied all remaining requests for relief as moot and closed the case. The dismissal followed the settlement requiring Micro Focus to pay $67.5 million in exchange for a fully paid-up, worldwide, irrevocable license covering the asserted patents.
United States District Court for the Eastern District of Texas
Case Name:
Wapp Tech Limited Partnership et al. v. Seattle SpinCo, Inc. et al.
Software Patent
Patent Infringement
Patent Infringement and Validity Expertise
Patent Claim Mapping
Source Code Analysis
Application Development Software
Damages Calculations
Royalty Rates
Licensing
In July 2018, Wapp Tech Limited Partnership and Wapp Tech Corp. filed a patent infringement action against Micro Focus International plc in the U.S. District Court for the Eastern District of Texas. The court later dismissed Micro Focus International plc for lack of personal jurisdiction, while amended claims continued against five affiliated Micro Focus entities. Wapp alleged that enterprise testing products, including LoadRunner and Performance Center, infringed three patents involving mobile application performance testing. The litigation addressed patent claim construction, accused source-code functions, software architecture, infringement, patent validity, and damages.
In March 2021, a jury found that the five Micro Focus entities infringed at least one asserted claim and found willful infringement as to each of the three asserted patents. The jury awarded Wapp $172,554,269 in damages. Although the verdict included willfulness findings, the court declined to enhance the award after concluding that Micro Focus’s conduct did not meet the standard for egregious infringement. Final judgment for $172,554,269 was entered on April 22, 2021. In July 2021, the parties reported a settlement under which Micro Focus agreed to pay $67.5 million in exchange for a fully paid-up, worldwide, irrevocable license covering the asserted patents. They filed a joint motion to dismiss in September 2021, and the court dismissed the action with prejudice on November 23, 2021.
Wapp Tech Limited Partnership and Wapp Tech Corp. filed a patent infringement action against Micro Focus International plc in the U.S. District Court for the Eastern District of Texas. The complaint alleged that enterprise performance-testing products, including LoadRunner and Performance Center, infringed three patents concerning mobile application development and testing under simulated network conditions. Wapp sought damages and other relief for the alleged unauthorized use of the patented technology.
The court dismissed Micro Focus International plc for lack of personal jurisdiction. Wapp then proceeded with amended claims against five related entities connected to the accused Micro Focus products. During the later trial proceedings, the five entities were collectively referred to as Micro Focus.
The case went to a jury trial in March 2021, with each side receiving 10.5 hours to present evidence. Wapp presented Dr. Sam Malek on technical infringement issues and Roy Weinstein on damages. Micro Focus presented Dr. Matthew Shoemake as its technical expert on the accused software and noninfringement, Clarke Nelson on damages, and Dr. Daniel Van Der Weide on patent invalidity.
With limited trial time remaining, Micro Focus conceded its anticipation, obviousness, and enablement defenses. It sought to continue with its written-description defense, but the court granted Wapp judgment as a matter of law on validity and instructed the jury to disregard the invalidity testimony. On March 5, 2021, the jury found that Micro Focus infringed at least one asserted claim, found willful infringement as to each of the three asserted patents, and awarded Wapp $172,554,269 in damages.
Following the verdict, Wapp moved for enhanced damages under the standard established in Halo Electronics, Inc. v. Pulse Electronics, Inc. The court reviewed the totality of the circumstances and the Read factors but concluded that Micro Focus’s conduct did not meet the standard for egregious infringement required to increase the award. It cited Micro Focus’s good-faith defenses and found no litigation misconduct that justified enhancement. The court denied Wapp’s motion and entered final judgment for the jury’s original $172,554,269 award.
On July 15, 2021, Wapp and Micro Focus entered into a binding settlement term sheet addressing a global settlement, patent license, and release. That same day, the parties filed a joint notice of settlement and requested a stay of all deadlines and proceedings. On July 16, 2021, the court granted the request and stayed the remaining proceedings, deadlines, and execution of the $172,554,269 judgment. Under the agreement, Micro Focus was required to pay $67.5 million in exchange for a fully paid-up, worldwide, irrevocable license covering the asserted patents.
The binding term sheet became the final settlement agreement on September 4, 2021, because the parties did not execute a longer-form agreement within the specified negotiation period. On September 17, they filed a joint motion requesting dismissal of the litigation. The proposed dismissal would conclude the case without appellate review of the jury verdict or the court’s post-trial rulings.
On November 23, 2021, the court granted the parties’ joint request and dismissed the action with prejudice. It denied all remaining requests for relief as moot and closed the case. The dismissal followed the settlement requiring Micro Focus to pay $67.5 million in exchange for a fully paid-up, worldwide, irrevocable license covering the asserted patents.
Software Engineering Expert Witness (Plaintiff side)
Dr. Sam Malek, a professor in the Department of Informatics at the University of California, Irvine, testified as Wapp’s technical expert. He reviewed the accused products’ source code, documentation, and testing results and offered opinions on their functionality, the asserted patent claim limitations, infringement, and technical apportionment.
Technical Expert Witness (Defense side)
Dr. Matthew Shoemake testified for Micro Focus as its technical expert. He offered opinions concerning the accused software, whether the accused software met the asserted patent claim limitations, and Micro Focus’s noninfringement positions. The court later stated that Micro Focus had presented a reasonable and legally sufficient noninfringement case through his trial testimony.
Damages Expert Witnesses (Plaintiff and Defense side)
Roy Weinstein testified as Wapp Tech’s damages expert for the plaintiff side. He offered opinions concerning damages apportionment, the value attributed to the patented functionality, and the reasonable royalty the parties might have agreed to in a hypothetical licensing negotiation.
Clarke Nelson testified as Micro Focus’s damages expert for the defense side. He presented an opposing damages analysis addressing apportionment, the economic value of the accused functionality, and the reasonable royalty calculation.
Software Patent Expert Witness
A software patent expert witness is often engaged in disputes involving source code, software architecture, patent claim interpretation, infringement, and validity. This expert may compare the accused technology with the asserted patent claims, explain how the software operates, and evaluate prior art or technical documentation. The expert may also assist the court or jury in understanding complex software functions and how they relate to the disputed patent language.
Address Jurisdiction and Venue at the Outset
Micro Focus sought to transfer the action to Delaware under the first-to-file rule, but the court denied the request. In a separate ruling, the court dismissed Micro Focus International plc for lack of personal jurisdiction while permitting Wapp’s amended claims to continue against five related entities. Early case planning should therefore examine venue, personal jurisdiction, corporate relationships, and parallel litigation before the parties enter extensive discovery.
Control Prior Art Disclosures and Claim Construction Strategy
Before trial, the parties disputed the scope and timing of Micro Focus’s prior art disclosures. Patent litigants should ensure that invalidity contentions, prior art elections, and supporting technical theories comply with the court’s scheduling and disclosure requirements. Precise and timely disclosures can limit disputes over whether particular references or invalidity theories may be presented at trial.
Connect Expert Testimony to Each Asserted Claim
The parties offered technical and damages testimony concerning the accused software, patent claim limitations, validity, and reasonable royalty calculations. Technical opinions should connect the accused source-code functions to each asserted claim limitation through evidence rather than unsupported conclusions. Damages analysis should remain tied to the patented technology, the accused products, and the record supporting the proposed royalty calculation.
Preserve Core Defenses Within Trial-Time Limits
Each side received 10.5 hours to present its case. After using most of its allotted time, Micro Focus conceded its anticipation, obviousness, and enablement defenses. It attempted to continue with a written-description defense, but the court granted Wapp judgment as a matter of law on patent validity. In a time-limited trial, counsel should reserve enough time to present essential technical and legal defenses and complete the evidentiary record required to preserve those issues.
Structure Post-Verdict Settlement and Licensing Terms Carefully
After the court entered judgment for $172,554,269 without enhanced damages, the parties resolved the dispute through a reported $67.5 million payment. Micro Focus also received a fully paid-up, worldwide, irrevocable license covering the asserted patents. Post-verdict negotiations should account for the existing judgment, unresolved motions, possible appellate proceedings, payment obligations, license scope, and the treatment of current and future products.
Wapp Tech v. Micro Focus involved allegations that enterprise performance-testing products infringed three patents covering mobile application testing under simulated network conditions. After jurisdictional disputes, claim interpretation, source-code review, technical testimony, and damages analysis, a jury found infringement and willfulness in March 2021 and awarded Wapp $172,554,269. The court declined to increase the award and entered judgment for the original amount. The parties later resolved the litigation through a $67.5 million settlement that granted Micro Focus a fully paid-up, worldwide, irrevocable license covering the asserted patents, and the court dismissed the action with prejudice on November 23, 2021. The proceedings connected the infringement analysis to patent claim language, software architecture, source-code functions, validity defenses, and reasonable royalty evidence, while the settlement ended the dispute without appellate review of the jury verdict or the court’s post-trial rulings.
Which patents did Wapp assert against Micro Focus?
Wapp asserted U.S. Patent Nos. 8,924,192; 9,298,864; and 9,971,678. The asserted claims concerned technologies used to test mobile application performance under varying network conditions.
When was Wapp Tech v. Micro Focus filed and resolved?
Wapp filed the lawsuit on July 2, 2018, in the U.S. District Court for the Eastern District of Texas. The parties reported a settlement in July 2021, moved jointly for dismissal in September 2021, and obtained a dismissal with prejudice on November 23, 2021.
How much did the jury award Wapp Tech?
On March 5, 2021, the jury awarded Wapp $172,554,269 after finding that Micro Focus infringed at least one asserted claim and that its infringement was willful as to each of the three asserted patents. The court declined to increase the damages and entered judgment for the original amount on April 22, 2021.
Which expert witnesses testified in the case?
Dr. Sam Malek testified for Wapp on technical infringement issues, and Roy Weinstein addressed damages. Micro Focus presented Dr. Matthew Shoemake on the accused software and noninfringement, Clarke Nelson on damages, and Dr. Daniel Van Der Weide on patent invalidity. The court later granted judgment as a matter of law on validity and instructed the jury to disregard the invalidity testimony.
Why did the court deny enhanced damages?
Although the jury found willful infringement, the court concluded that Micro Focus’s conduct did not meet the standard for egregious infringement required under Halo Electronics, Inc. v. Pulse Electronics, Inc. The court cited Micro Focus’s good-faith defenses and found no litigation misconduct that justified increasing the award.
Software Engineering Expert Witness (Plaintiff side)
Dr. Sam Malek, a professor in the Department of Informatics at the University of California, Irvine, testified as Wapp’s technical expert. He reviewed the accused products’ source code, documentation, and testing results and offered opinions on their functionality, the asserted patent claim limitations, infringement, and technical apportionment.
Technical Expert Witness (Defense side)
Dr. Matthew Shoemake testified for Micro Focus as its technical expert. He offered opinions concerning the accused software, whether the accused software met the asserted patent claim limitations, and Micro Focus’s noninfringement positions. The court later stated that Micro Focus had presented a reasonable and legally sufficient noninfringement case through his trial testimony.
Damages Expert Witnesses (Plaintiff and Defense side)
Roy Weinstein testified as Wapp Tech’s damages expert for the plaintiff side. He offered opinions concerning damages apportionment, the value attributed to the patented functionality, and the reasonable royalty the parties might have agreed to in a hypothetical licensing negotiation.
Clarke Nelson testified as Micro Focus’s damages expert for the defense side. He presented an opposing damages analysis addressing apportionment, the economic value of the accused functionality, and the reasonable royalty calculation.
Software Patent Expert Witness
A software patent expert witness is often engaged in disputes involving source code, software architecture, patent claim interpretation, infringement, and validity. This expert may compare the accused technology with the asserted patent claims, explain how the software operates, and evaluate prior art or technical documentation. The expert may also assist the court or jury in understanding complex software functions and how they relate to the disputed patent language.
Address Jurisdiction and Venue at the Outset
Micro Focus sought to transfer the action to Delaware under the first-to-file rule, but the court denied the request. In a separate ruling, the court dismissed Micro Focus International plc for lack of personal jurisdiction while permitting Wapp’s amended claims to continue against five related entities. Early case planning should therefore examine venue, personal jurisdiction, corporate relationships, and parallel litigation before the parties enter extensive discovery.
Control Prior Art Disclosures and Claim Construction Strategy
Before trial, the parties disputed the scope and timing of Micro Focus’s prior art disclosures. Patent litigants should ensure that invalidity contentions, prior art elections, and supporting technical theories comply with the court’s scheduling and disclosure requirements. Precise and timely disclosures can limit disputes over whether particular references or invalidity theories may be presented at trial.
Connect Expert Testimony to Each Asserted Claim
The parties offered technical and damages testimony concerning the accused software, patent claim limitations, validity, and reasonable royalty calculations. Technical opinions should connect the accused source-code functions to each asserted claim limitation through evidence rather than unsupported conclusions. Damages analysis should remain tied to the patented technology, the accused products, and the record supporting the proposed royalty calculation.
Preserve Core Defenses Within Trial-Time Limits
Each side received 10.5 hours to present its case. After using most of its allotted time, Micro Focus conceded its anticipation, obviousness, and enablement defenses. It attempted to continue with a written-description defense, but the court granted Wapp judgment as a matter of law on patent validity. In a time-limited trial, counsel should reserve enough time to present essential technical and legal defenses and complete the evidentiary record required to preserve those issues.
Structure Post-Verdict Settlement and Licensing Terms Carefully
After the court entered judgment for $172,554,269 without enhanced damages, the parties resolved the dispute through a reported $67.5 million payment. Micro Focus also received a fully paid-up, worldwide, irrevocable license covering the asserted patents. Post-verdict negotiations should account for the existing judgment, unresolved motions, possible appellate proceedings, payment obligations, license scope, and the treatment of current and future products.
Wapp Tech v. Micro Focus involved allegations that enterprise performance-testing products infringed three patents covering mobile application testing under simulated network conditions. After jurisdictional disputes, claim interpretation, source-code review, technical testimony, and damages analysis, a jury found infringement and willfulness in March 2021 and awarded Wapp $172,554,269. The court declined to increase the award and entered judgment for the original amount. The parties later resolved the litigation through a $67.5 million settlement that granted Micro Focus a fully paid-up, worldwide, irrevocable license covering the asserted patents, and the court dismissed the action with prejudice on November 23, 2021. The proceedings connected the infringement analysis to patent claim language, software architecture, source-code functions, validity defenses, and reasonable royalty evidence, while the settlement ended the dispute without appellate review of the jury verdict or the court’s post-trial rulings.
Which patents did Wapp assert against Micro Focus?
Wapp asserted U.S. Patent Nos. 8,924,192; 9,298,864; and 9,971,678. The asserted claims concerned technologies used to test mobile application performance under varying network conditions.
When was Wapp Tech v. Micro Focus filed and resolved?
Wapp filed the lawsuit on July 2, 2018, in the U.S. District Court for the Eastern District of Texas. The parties reported a settlement in July 2021, moved jointly for dismissal in September 2021, and obtained a dismissal with prejudice on November 23, 2021.
How much did the jury award Wapp Tech?
On March 5, 2021, the jury awarded Wapp $172,554,269 after finding that Micro Focus infringed at least one asserted claim and that its infringement was willful as to each of the three asserted patents. The court declined to increase the damages and entered judgment for the original amount on April 22, 2021.
Which expert witnesses testified in the case?
Dr. Sam Malek testified for Wapp on technical infringement issues, and Roy Weinstein addressed damages. Micro Focus presented Dr. Matthew Shoemake on the accused software and noninfringement, Clarke Nelson on damages, and Dr. Daniel Van Der Weide on patent invalidity. The court later granted judgment as a matter of law on validity and instructed the jury to disregard the invalidity testimony.
Why did the court deny enhanced damages?
Although the jury found willful infringement, the court concluded that Micro Focus’s conduct did not meet the standard for egregious infringement required under Halo Electronics, Inc. v. Pulse Electronics, Inc. The court cited Micro Focus’s good-faith defenses and found no litigation misconduct that justified increasing the award.
How did Wapp Tech v. Micro Focus conclude?
Micro Focus agreed to pay $67.5 million in exchange for a fully paid-up, worldwide, irrevocable license covering the asserted patents. The court dismissed the action with prejudice on November 23, 2021, without appellate review of the jury verdict or the court’s post-trial rulings.
Software Patent
Patent Infringement
Patent Infringement and Validity Expertise
Patent Claim Mapping
Source Code Analysis
Application Development Software
Damages Calculations
Royalty Rates
Licensing
Technology
Patent, +4
Technology
Artificial Intelligence, +4
Technology
How did Wapp Tech v. Micro Focus conclude?
Micro Focus agreed to pay $67.5 million in exchange for a fully paid-up, worldwide, irrevocable license covering the asserted patents. The court dismissed the action with prejudice on November 23, 2021, without appellate review of the jury verdict or the court’s post-trial rulings.