Software Patent Case Survives Foreign Service Rules Challenge

Judge Mazzant of the Eastern District of Texas ruled Tuesday on Wapp Tech Limited Partnership et al’s suit against Micro Focus International PLC; the court denied one defendant’s motion to dismiss and denied Wapp Tech’s to add that defendant as a party as moot, finding that Rule 4’s 90-day limit does not apply to serving foreign entities, but a plaintiff must show it acted with diligence.

Wapp Tech sued five defendants for patent infringement via a Second Amended Complaint in August 2019, and served four of the parties, but supposedly did not serve EntCo Israel until December 1, 2019, 103 days after the complaint was filed. The case concerns technologies that allow “software design and testing before it is published to a consumer by simulating real-world conditions for app developers while in the development phase.”

EntCo Israel has sought to dismiss based on Wapp’s improper service. Specifically, EntCo claimed that as per court rules Wapp Tech was required to serve all of the defendants within 90 days after it filed the complaint or needed to show good cause why this was not possible.

Contrarily, Wapp stated that the 90-day period to serve EntCo Israel “is longer given that EntCo Israel is a foreign entity.” Wapp added that regardless it has shown good cause for the delay “because the United States Post Service lost the service package that it sent to EntCo Israel during the 90-day period.”  As a result, Wapp Tech has asked the court to extend the service deadline. The court agreed with Wapp Tech stating that “the deadline for service extends beyond the 90-day limit under Rule 4(m) due to EntCo Israel’s status as a foreign entity; therefore, the Court finds that Wapp’s service is sufficient and EntCo Israel’s 12(b)(5) motion to dismiss must be denied.”

The court noted that a court can still dismiss a case without prejudice if the court determines that “the plaintiff has not demonstrated reasonable diligence in attempting service.” The court stated that Wapp was diligent because it “‘initiated’ service on EntCo Israel on September 9, 2019 – only 20 days after filing its complaint…While Wapp’s first attempt failed through no fault of its own, Wapp’s second attempt to serve EntCo Israel was successful – effectuating service just 103 days after Wapp filed the Complaint.”

As a result, Wapp Tech’s contingent motion to add EntCo Israel as a party is denied as moot. EntCo, whose non-Israeli subsidiaries are also party to the case, is represented by Gibson, Dunn & Crutcher.  The plaintiff is represented by the Devlin Law Firm and the Toler Law Group.