Invincible IP LLC v. Cirba

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Invincible IP LLC (Texas)
  • Defendant: Cirba, Inc. d/b/a Densify (Canada)
  • Plaintiff’s Counsel: The Mort Law Firm, PLLC
• Case Identification: 2:22-cv-01007, W.D. Tex., 09/27/2022
• Venue Allegations: Venue is asserted based on Defendant's alleged "systematic and continuous business activities" and commission of "acts of patent infringement" within the Western District of Texas.
• Core Dispute: Plaintiff alleges that Defendant’s Densify Cloud Resource Management system infringes a patent related to the dynamic management and migration of virtual machine workloads in a cloud computing environment.
• Technical Context: The technology concerns methods for optimizing the use of shared computing resources (e.g., processors, memory) by monitoring virtual machine consumption rates and intelligently reallocating or migrating workloads to improve performance and quality of service.
• Key Procedural History: The complaint notes that the patent-in-suit was assigned to the Plaintiff. The patent originated from an international PCT application, filed in 2012, before entering the U.S. national stage. No other procedural history is mentioned.

Case Timeline

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 9,635,134 - RESOURCE MANAGEMENT IN A CLOUD COMPUTING ENVIRONMENT

The Invention Explained

• Problem Addressed: In cloud computing environments, multiple virtual machines (VMs) compete for limited, shared resources like processing power and memory. This competition makes it "difficult to determine which VMs may have priority over another" and can lead to resource exhaustion, which negatively impacts the quality of service (QoS) for users (’134 Patent, col. 1:20-28, col. 4:6-10).
• The Patented Solution: The patent proposes a dynamic, two-tiered method for managing VM resource allocation. The system first monitors the "consumption rate" of resources by VMs and prioritizes them using a "first resource management scheme." If it detects a significant "change in the consumption rate" that exceeds a threshold, it employs a "second resource management scheme" to re-prioritize the VMs. This second scheme can trigger the "migration of the consumption of the cloud resources to alternate cloud resources located outside of the cloud computing environment" for certain VMs to balance the load ('134 Patent, Abstract; Claim 1; Fig. 4).
• Technical Importance: This method provides a more sophisticated and responsive approach to load balancing in cloud environments compared to static resource allocation, aiming to improve overall system efficiency and maintain QoS ('134 Patent, col. 4:28-30).

Key Claims at a Glance

• The complaint asserts infringement of at least Claim 1 ('Compl. ¶12').
• Independent Claim 1 requires:
  • A method for managing cloud resources.
  • Determining a resource "consumption rate" for VMs by monitoring metrics like processor usage, memory usage, or I/O access rates.
  • Prioritizing VMs using a "first resource management scheme" based on the consumption rate.
  • Determining if a "change in the consumption rate" exceeds a threshold, where the change can be based on processor/memory/I/O rates or a "change region size based on changed regions of a graphical display."
  • Re-prioritizing VMs using a "second resource management scheme" based on maximum resource capacity and whether the threshold was exceeded.
  • Migrating at least one prioritized VM to "alternate cloud resources located outside of the cloud computing environment" based on the second prioritization scheme.
• The complaint notes infringement of "one or more claims," reserving the right to assert others (Compl. ¶11).

III. The Accused Instrumentality

Product Identification

• The "Densify Cloud Resource Management system" (Compl. ¶7).

Functionality and Market Context

• The complaint alleges the accused system "provides monitoring and performance metrics, provides recommendations, and manages resources in the Densify cloud computing environment" (Compl. ¶13).
• Its alleged functions include determining a "consumption rate" of CPU and memory, prioritizing VMs based on calculated "CPU and memory demand," determining when consumption changes exceed a "preset threshold level," and using "Workload balancing" to migrate VMs to a "destination host" to reduce load imbalances (Compl. ¶¶14-18).
• The complaint does not provide sufficient detail for analysis of the product's commercial importance or market positioning.
• No probative visual evidence provided in complaint.

IV. Analysis of Infringement Allegations

'134 Patent Infringement Allegations

• Identified Points of Contention:
  • Scope Questions: A central question may be whether the accused system's migration of a VM to a "destination host" (Compl. ¶18) satisfies the claim requirement of migrating to resources "located outside of the cloud computing environment." The interpretation of "outside" will be critical, as it could mean a separate physical data center, a different cloud provider (e.g., in a hybrid cloud), or simply a different host machine within the same infrastructure. The patent’s Figure 1 depicts "Outside Resources 106" as a distinct entity from "Cloud 102," which may support a narrower construction.
  • Technical Questions: Claim 1 requires that the determination of a change in consumption rate includes, as a possible basis, a "change region size based on changed regions of a graphical display" ('134 Patent, col. 16:1-4). The complaint alleges this element is met (Compl. ¶16) but provides no specific facts explaining how the accused Densify system uses such a graphical-display-based metric. The patent introduces this concept as an "analogy to virtual graphics driver technology" (col. 6:11-13), raising the question of whether this limitation requires a literal implementation or can be met by an analogous function.

V. Key Claim Terms for Construction

• The Term: "alternate cloud resources located outside of the cloud computing environment"

• Context and Importance: The viability of the infringement claim may depend on the scope of this term. If construed narrowly, routine VM migration between hosts in a single data center might not infringe. Practitioners may focus on this term because it defines the boundary of the claimed migration action.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The patent describes "outside resources" as potentially being in "another ubiquitous type computing environment separate from cloud 102" (col. 5:17-19), which could be interpreted to mean any logically or physically separate resource pool.
  • Evidence for a Narrower Interpretation: The patent specification lists "public cloud, resources included in community cloud, resources included in private cloud, resources included in hybrid cloud, [or] Internet resources" as examples of "alternate cloud resources" (col. 16:31-36). This suggests migration between different types of cloud environments, not just between servers in the same environment. Figure 1 also shows "Outside Resources 106" as a completely separate block from "Cloud 102."

• The Term: "a change region size based on changed regions of a graphical display"

• Context and Importance: This limitation is highly specific and technical. The complaint makes a conclusory allegation that it is met but offers no supporting facts (Compl. ¶16). Practitioners may focus on this term because if it is given its plain and ordinary meaning, it may present a significant proof challenge for the plaintiff.

• Intrinsic Evidence for Interpretation:

  • Evidence for a Broader Interpretation: The patent introduces this concept within a section described as an "analogy to virtual graphics driver technology" (col. 6:11-13), which a party might argue suggests the term is illustrative of a type of volatility metric, not a literal requirement to monitor a display.
  • Evidence for a Narrower Interpretation: The patent describes the concept in specific terms, referencing "changed regions within graphics cards" and how a large change region implies rapidly changing displays (col. 6:15-21). This language supports a narrow construction requiring a system that literally uses metrics derived from a graphical display buffer or driver.

VI. Other Allegations

The complaint does not include counts or specific factual allegations for indirect infringement or willful infringement.

VII. Analyst’s Conclusion: Key Questions for the Case

• A core issue will be one of definitional scope: can the phrase "located outside of the cloud computing environment" be construed to cover VM migration between different hosts within a single, commonly managed cloud infrastructure, or does it require migration to a distinct environment, such as a separate private or public cloud?
• A key evidentiary question will be one of technical proof: can the plaintiff produce evidence that the accused Densify system performs the specific function of determining a change in resource consumption based on a "change region size based on changed regions of a graphical display", as recited in Claim 1, or will the court find a fundamental mismatch in technical operation on this element?