On October 27, 2014, Judge Tigar in the Northern District of California denied Wowza’s motion to dismiss infringement allegations in a second lawsuit brought against it by Adobe. Wowza argued that allegations of infringement of two patents were an attempt to re-litigate the court’s order striking those same infringement theories from Adobe’s expert report in the prior litigation. Adobe argued that the court’s order merely limited the scope of that first litigation, but did not bar Adobe from bringing other infringement actions against Wowza. 

In the first litigation (Wowza I), the court struck an infringement theory in Adobe’s expert report related to an “RTMP Enhanced handshake” because that theory was not included in Adobe’s infringement contentions. The court also struck opinions related to Wowza’s products with a version number 3.1 or later, because Adobe’s infringement contentions only identified versions 3.0 or earlier. But version 3.1 and later products were released after the deadline for the final infringement contentions, and in the second litigation (Wowza II), Adobe alleged infringement only for version 3.1 and later products employing the RTMP Enhanced handshake.

In denying Wowza’s motion to dismiss allegations related to the previously stricken RTMP Enhanced handshake, the court found that Adobe did not have notice of Wowza’s use of the RTMP Enhanced handshake at the time final infringement contentions were served in Wowza I. Further, the court found that the RTMP Enhanced handshake was not “essentially the same” as the previously accused RTMPe handshake—so Wowza’s argument regarding claim splitting failed. Therefore, there was no reason to exclude that theory from Wowza II. Further, because all the allegations in Wowza II related to products that were released after the submission of the Wowza I infringement contentions, barring Adobe from bringing a subsequent litigation would “punish them for failing to see into the future.”

Adobe Systems Inc. v Wowza Media Systems, LLC, 3:14-cv-02778 (N.D. Cal. Oct. 27, 2014) (Tigar, J.).