Friday, March 29, 2013

Skyhook v. Google patent trial slips into 2014 as result of consolidation of two lawsuits

Skyhook Wireless sued Google in 2010 for patent infringement and anticompetitive conduct after the company controlling Android bullied Samsung and then-independent Motorola out of partnerships with Skyhook concerning its location-positioning software. Two of the four patents it originally asserted were dismissed, and the other two could finally have gone to trial in the District of Massachusetts this summer, but the court granted Google's motion to consolidate another Skyhook v. Google lawsuit over nine more patents, filed in September 2012 in Delaware and transferred to Massachusetts in January 2013 at Google's request, into the earlier-filed one. As a result, a lot of homework still has to be done before the consolidated case can be tried, and there won't be a trial this year -- but when the case finally does go to trial, it will be considerably bigger than otherwise.

Consolidation of the two Skyhook v. Google cases was ordered more than two weeks ago, but became discoverable only now because the parties filed a stipulation regarding the schedule for the consolidated case, which references at the start the oral order to consolidate:

"WHEREAS at the hearing held on March 14, 2013, the Court ordered consolidation of Civil Action No. 1:10-cv-11571-RWZ [Skyhook's first patent lawsuit] and Civil Action No. 1:13-cv-10153-RWZ [the second one]."

A technology tutorial and claim construction hearing for the patents asserted in the second complaint will be held (if the court approves this stipulation) on October 10, 2013. The court will have to set a new trial date for the consolidated action. Before consolidation was ordered (but at a time when it was clear that it might very well happen), Skyhook proposed to hold the trial in June 2014, while Google did not take a position on a suitable trial date.

Google has thwarted Skyhook's plan of two parallel cases, one in Delaware and one in Massachusetts, but I guess Skyhook and its lawyers knew from the beginning that a transfer and consolidation were fairly possible. The only way to avoid it would have been for Skyhook to bring its second lawsuit much later (for example, after a trial in the first case, or so close to the trial that the first case would not have been affected by the second one). But after two of its four original patents-in-suit were tossed, Skyhook probably thought it needed to press on with its second round of assertions at the earliest opportunity -- even if this might result in consolidation and delay.

Considering how rapidly this industry evolves, it's unbelievable that a patent infringement suit filed in 2010 would go to trial in 2014 (which isn't even guaranteed as there could always be further delay). But Google can't solve its Skyhook problem merely by stalling. Eventually Skyhook will get its day in court -- and it most likely won't take Google's patent pledge.

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