Monday, March 12, 2012

British Telecom withdraws triple damages claim and certain allegations against Google to avoid delay

In December, British Telecom sued Google in the District of Delaware, alleging the infringement of six BT patents by various Google services and Android.

Google had until February 21 to respond to BT's complaint and, on that day, brought a motion to dismiss BT's claims of indirect and willful infringement. Google's legal argument basically came down to saying that BT can't bring allegations based on the notion that Google would acquire knowledge of the patents-in-suit at the time of the filing of the complaint. BT's claims contained passages such as "Google has infringed and continues to infringe, and following filing will be willfully infringing, [...]" and "Google's continuation of past practices following receipt of this Complaint will constitute inducement of infringement and/or contributory infringement and give rise to indirect, as well as direct, infringement". While such wordings don't rule out that Google may have had knowledge of those patents even prior to its receipt of the complaint, they suggest that the filing of the complaint could mark the beginning of a period with respect to which Google would be liable on those grounds. I haven't seen that kind of theory in any other litigation, to be honest.

On Friday (March 9, 2012), BT stated its opposition to Google's motion but simultaneously amended its complaint so as to render Google's motion moot. In addition to filing the amended complaint, BT also provided the court with a redlined version that shows what changed. It all came down to the removal of the kinds of passages I quoted above, as well as the related prayers for relief, including a request for a "trebling of damages pursuant to 35 U.S.C. §284" (willful infringement).

BT's motion argues that Google's concerns have been addressed, even though BT doesn't agree and expressly reserves the right to reassert those counts "as discovery progresses". I believe this means that BT will again assert inducement of infringement, contributory infringement and willful infringement if any evidence of such violations comes up (BT must mean evidence from the time before BT filed its lawsuit).

PThose allegations based on the notion of post-filing knowledge were a waste of almost three months from BT's perspective. Google won't be able to solve the problem with stalling alone, and BT doesn't appear to be in a major hurry (otherwise it wouldn't have picked the District of Delaware, which isn't a rocket docket), but it did the right thing by ensuring that Google would now have to respond to the substance of the complaint.

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