A longtime California technology software innovator filed nine lawsuits this week – six of them in the Western District of Texas – against some of the largest and most profitable corporations in e-commerce claiming that they illegally used his patented technology without a license.
Steven H. Rempell, a former IBM systems engineer and founder of Express Mobile, claims that Facebook, Google, eBay, DropBox, Atlassian, Expedia, HubSpot, Microsoft and Squarespace infringed on five of his patents that his lawyers say are “fundamental to modern solutions architecture and design, particularly for Web 2.0 applications such as mobile and desktop website generation, social media and e-commerce websites.”
The federal complaints state that two of Rempell’s patents for solutions to technical problems related to website creation and generation were approved by the U.S. Patent and Trademark Office more than a decade ago.
“[Rempell] was an early inventor in this space and had the foresight in how the industry would evolve in how websites are developed,” said King & Spalding partner Steven Rizzi.
Rempell’s lawyers declined to disclose the damages they plan to seek, but IP lawyers not involved in the litigation predict that the plaintiff will want tens of millions of dollars each from most, if not all, of the defendants.
The Texas Lawbook’s efforts to identify lawyers representing the defendants were unsuccessful Wednesday.
King & Spalding partner Jeffrey Mills of Austin said they chose to file six of the cases in Waco because they believe that U.S. District Judge Alan Albright “is very practical and predictable” in how he handles patent disputes.
“I am a lifelong inventor and have been developing software technologies globally for companies for close to 50 years,” Rempell said in a written statement. “We don’t want to stop the defendants or anyone from using our patents – we just want to be paid a fair royalty.”
One of the critical patents being infringed by the large internet companies, the lawsuits allege, is patent number 6,546,397, which is entitled “Browser Based Web Site Generation Tool and Run Time Engine,” which was approved by the U.S. Patent Office in 2003.
Patent ‘397, according to the complaint, protects Rempell’s inventions that “enable the creation of websites through browser-based visual editing tools such as selectable settings panels which describe website elements, with one or more settings corresponding to commands. These features are exclusively implemented utilizing computer technology including a virtual machine.”
Claims in that patent, according to the lawsuits, “do not merely recite the performance of some pre-Internet business practice on the Internet.
“Instead, the claims of the ’397 patent recite inventive concepts that are rooted in computerized website creation technology, and overcome problems specifically arising in the realm of computerized website creation technologies,” the complaint states.
Rempell and Express Mobile filed similar patent lawsuits against GoDaddy, Shopify and others in 2019.
In articles about those cases, online technology blogs described Express Mobile pejoratively as a “patent troll.”
Independent IP lawyers, speaking on the condition that they not be identified because they could later be hired in the litigation, said that Express Mobile may be a non-practicing entity (NPE) and the validity of Rempell’s patents are yet to be decided, but they also said the plaintiff has none of the traditional characteristics of a “patent troll.”
Trolls, they said, normally sue based on highly questionable patents and seek quick, low-dollar settlements to resolve “nuisance litigation.”
And trolls, they said, don’t hire lawyers at national corporate law firms such as King & Spalding, which charge clients $1,000 or more an hour for their services. Feinberg Day Kramer, MoloLamken, Steptoe & Johnson and the Devlin Law Firm are also representing Express Mobile.
Mills and Rizzi said that they don’t consider Express Mobile an NPE because Express Mobile ”still plans on being an operating business.”
“There was a time when a lot of NPEs were asserting patents that they should not have been asserting,” Mills said. “But there has been an evolution in NPEs and the quality of their patents.”
This is a view now shared by most experienced patent lawyers.
Rempell has a fascinating history.
Employed by IBM from 1964 to 1972, he co-developed the Houston Automatic Spooling Program software system for Mobil Oil. IBM moved Rempell to Japan, where he founded MicroPro Japan, which became the nation’s second largest micro computer firm, according to his LinkedIn profile.
Rempell made national news in 1979 when he was arrested by Japanese authorities for allegedly violating the nation’s customs and liquor tax laws – a charge he adamantly denied. The New York Times reported that Japanese authorities had subjected Rempell to severe duress during hours of interrogation. In the end, he was fined $77,000.
In 1984, Rempell co-founded Beyond Words, where he invented the first graphical word processing system, which was licensed to IBM, Canon and other companies. He started Express Mobile in 2006.
Rempell suffered a near-fatal car accident in 2011, which was a major setback for his operations and “caused XMO to lose its position in a burgeoning marketplace,” according to the company’s CEO, Jeff Samuelson.