Kim v. Kettell & PolyPort: Encryption Software Patent Dispute Dismissed With Prejudice
Andrew Dosa Kim filed a declaratory judgement action in the Colorado District Court against Chloe Kettell, Michael Shull, Partha Ray, and PolyPort, Inc., centring on two patents covering the D3CRYPT3D encryption software product. After 1,235 days of litigation, all parties stipulated to dismiss every claim with prejudice — each side absorbing its own legal costs.
A Declaratory Judgement Standoff Over Encryption IP Ends in Mutual Exit
On 27 April 2021, Andrew Dosa Kim filed a declaratory judgement action in the United States District Court for the District of Colorado (Case No. 1:21-cv-01152) against Chloe Kettell, Michael Shull, Partha Ray, and PolyPort, Inc. The dispute centred on two patents — US10713388B2 and US20200410136A1 — both directed at encryption software technology embodied in the commercial product known as D3CRYPT3D. Plaintiff Kim sought a judicial declaration of his rights, suggesting a pre-existing ownership or inventorship dispute among the named parties.
After more than three years of litigation, the case closed on 13 September 2024. All parties — plaintiff and defendants alike — stipulated to dismissal of every claim asserted by any party pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii). The dismissal was entered with prejudice, meaning none of the parties may re-litigate the same claims in federal court. Notably, no cost or fee award was made; each side absorbs its own litigation expenditure, a structure consistent with a negotiated resolution rather than a contested adjudication on the merits.
The 1,235-day duration — well over three years — is notable for a case that ultimately resolved by stipulation rather than trial or summary judgement. The extended timeline may reflect protracted discovery over software inventorship, attempts at mediation, or complexity in untangling ownership rights across multiple individual and corporate defendants. The public record does not disclose any financial settlement terms, licence agreement, or assignment of patent rights, leaving the ultimate commercial disposition of the D3CRYPT3D encryption patents undisclosed.
Filing to Dismissed with Prejudice in 1235 days
1,235 days — well above the median district court patent case resolution of ~730 days
Stipulated dismissal with prejudice: what the joint exit means for both sides
Rule 41(a)(1)(A)(ii): a bilateral, court-filed stipulation
Fed. R. Civ. P. 41(a)(1)(A)(ii) allows all parties to jointly stipulate to dismissal without requiring a court order. Critically, when parties agree it is ‘with prejudice’, the dismissal operates as a final adjudication on the merits — permanently barring re-litigation of the same claims in any federal forum. No judge need sign off; the stipulation itself closes the case upon filing.
Bilateral stipulation — no court order neededWith prejudice means no second bite at these claims
A with-prejudice dismissal extinguishes all claims asserted by any party in this action permanently. Unlike a without-prejudice exit — which preserves the right to refile — this stipulation closes the door on Kim’s declaratory claims and any counterclaims the defendants may have pursued. The practical effect is that neither side can return to federal court on these specific encryption patent ownership or infringement theories.
Permanent bar on refilingEach party bears own fees — a deliberate negotiated term
In patent litigation, fee allocation is often a flashpoint. The stipulation here expressly provides that each party bears its own attorneys’ fees, costs, and expenses. This is consistent with a negotiated resolution — had one side prevailed clearly, a cost award or an exceptional-case fee motion under 35 U.S.C. § 285 would typically follow. The mutual cost absorption suggests neither side conceded defeat, and both preferred exit over further expenditure.
No § 285 fee motion filedD3CRYPT3D patents remain in force but ownership is unresolved publicly
The dismissal resolves the litigation but does not publicly resolve the underlying ownership or inventorship dispute over US10713388B2 and US20200410136A1. Both patents notionally remain in force unless separately challenged at the USPTO. Competitors and licensees in the encryption software space should note that the disputed ownership landscape — involving multiple individual claimants and PolyPort, Inc. — may still carry commercial uncertainty around these assets.
Patents remain live — ownership ambiguousFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | Andrew Dosa Kim | Individual | Declaratory judgement plaintiff — asserted rights over encryption software patents US10713388B2 and US20200410136A1Search in Eureka ↗ |
| Defendant | Chloe Kettell | Individual | Chloe Kettell, Michael Shull, Partha Ray, and PolyPort, Inc. — encryption software company and individual co-defendantsSearch in Eureka ↗ |
| Co-Defendant | Michael Shull | Individual | Search in Eureka ↗ |
| Co-Defendant | Partha Ray | Individual | Search in Eureka ↗ |
| Co-Defendant | PolyPort, Inc. | Company | Search in Eureka ↗ |
| Plaintiff counsel | Jill F. Lynch | Attorney | Counsel for Andrew Dosa KimSearch in Eureka ↗ |
| Plaintiff counsel | Nathalie Anne Bleuze | Attorney | Counsel for Andrew Dosa KimSearch in Eureka ↗ |
| Plaintiff counsel | Robyn Teresa Williams | Attorney | Counsel for Andrew Dosa KimSearch in Eureka ↗ |
| Plaintiff counsel | Sterling J. LeBoeuf | Attorney | Counsel for Andrew Dosa KimSearch in Eureka ↗ |
| Plaintiff law firm | Davis Graham & Stubbs LLP | Law Firm | Representing Andrew Dosa KimSearch in Eureka ↗ |
| Plaintiff law firm | Devlin Law Firm LLC | Law Firm | Representing Andrew Dosa KimSearch in Eureka ↗ |
| Defendant counsel | Ryan Harrison Gordon | Attorney | Counsel for Chloe KettellSearch in Eureka ↗ |
| Defendant law firm | Lyda Law Firm PC | Law Firm | Representing Chloe KettellSearch in Eureka ↗ |
| Presiding judge | Judge N/A | Judge | Colorado District CourtSearch in Eureka ↗ |
Official order — verbatim text
The stipulation’s scope is deliberately comprehensive — ‘all claims asserted by any party’ — ensuring no cross-claim, counterclaim, or third-party claim survives. The Fed. R. Civ. P. 41(a)(1)(A)(ii) mechanism, combined with the with-prejudice designation, gives this dismissal the legal force of a final judgement on the merits for res judicata purposes, even though no court ever adjudicated the underlying encryption patent ownership or infringement questions. The mutual cost-bearing provision is commercially significant: it signals parity between the parties at exit, rather than a clear winner.
US10713388B2 & US20200410136A1 — Encryption Software Technology (D3CRYPT3D)
US10713388B2 (application no. US15/979829) and US20200410136A1 (application no. US16/926991) both relate to encryption software technology commercialised as D3CRYPT3D. The earlier application — US15/979829 — progressed to a granted patent (US10713388B2), while US16/926991 published as a pending application. Together, these assets suggest a portfolio strategy building successive layers of protection around the core D3CRYPT3D encryption methodology, a pattern consistent with startups seeking to establish IP barriers in data security.
Encryption software patents occupy a strategically significant and legally contested space: they must clear § 101 abstract-idea challenges post-Alice, and inventorship disputes — as this case illustrates — are common where software is developed collaboratively. For competitors operating in data encryption, endpoint security, or cloud data protection, these patents warrant monitoring: their enforceability and ownership remained publicly unresolved at case closure, meaning future enforcement actions by whichever party holds rights cannot be excluded.
Should you run an FTO against US10713388B2 and US20200410136A1?
Any organisation developing, licensing, or acquiring encryption software products — particularly those with overlapping functionality to D3CRYPT3D — should treat these two patents as active FTO considerations. The with-prejudice dismissal in Kim v. Kettell does not extinguish patent enforceability; it merely closes that specific litigation. The patents remain in force at the USPTO, and the unclear ownership landscape means a new rights-holder could emerge and assert them without warning.
PatSnap Eureka’s FTO Search Agent can map the claim scope of US10713388B2 and US20200410136A1 against your product architecture, identify prior art that may limit enforceability, and track any post-litigation USPTO assignment activity that signals a change in ownership. R&D teams building data encryption or security software should run a structured FTO before product launch or funding rounds where these patents could surface in diligence.
Run a freedom-to-operate analysis on US10713388B2 to assess your product’s exposure
Run FTO in Eureka →Similar Encryption Software Patent Disputes in U.S. District Courts
Explore comparable declaratory judgement and ownership disputes involving encryption and data security software patents litigated in U.S. district courts.
What this case signals for the encryption software IP landscape
Inventorship and ownership disputes in software patents are rising. This case illustrates how they can drag on for years without public resolution.
Multi-party inventorship disputes in software IP are expensive and slow to resolve
With four defendants — three individuals and a corporation — this case typifies the complexity of software startup IP disputes where founders, co-developers, and the company itself may each claim ownership. At 1,235 days to a stipulated exit, litigation cost substantially before any merits ruling was reached. Early inventorship agreements and IP assignment provisions remain the most cost-effective mitigation.
Declaratory judgement as an offensive tool in software patent ownership battles
Kim’s use of a declaratory judgement action — rather than waiting to be sued — suggests he faced a credible threat from the defendants regarding the D3CRYPT3D encryption patents. DJ actions force the dispute into the plaintiff’s chosen forum and timeline, giving the filer procedural leverage. Companies and individuals facing IP ownership threats should evaluate whether a pre-emptive DJ filing is strategically appropriate.
Kim v Chloe — key questions answered
The case was dismissed with prejudice by stipulation of all parties on 13 September 2024, after 1,235 days of litigation. Each party agreed to bear its own attorneys’ fees and costs. No merits ruling was issued by the court on the underlying encryption patent ownership or infringement questions.
Two patents were involved: US10713388B2 (application US15/979829) and published application US20200410136A1 (application US16/926991). Both relate to encryption software technology commercialised under the product name D3CRYPT3D. US10713388B2 is a granted patent; US20200410136A1 was a pending published application at the time of the case.
A stipulated dismissal with prejudice under Fed. R. Civ. P. 41(a)(1)(A)(ii) permanently bars all parties from re-litigating the same claims in federal court. It operates as a final adjudication on the merits for res judicata purposes, even though no judge ruled on the substance of the encryption patent ownership dispute. Neither Kim nor the defendants can revive these specific claims.
A declaratory judgement action allows a party facing a credible IP threat to initiate litigation in a chosen forum before being sued. Kim’s filing in Colorado suggests he sought to control venue and timing, likely in response to threats or assertions from Kettell, Shull, Ray, or PolyPort, Inc. regarding ownership or rights to the D3CRYPT3D encryption software patents. The public record does not specify the exact nature of the pre-suit threat.
Yes, the dismissal with prejudice closes the litigation but does not affect the validity or enforceability of US10713388B2 or US20200410136A1 at the USPTO. Both patents remain in force unless challenged via inter partes review or ex parte reexamination. The ownership question — disputed among multiple parties — was not publicly resolved, meaning the identity of any future enforcing party remains uncertain from the public record.
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