Tuesday, July 2, 2013

Skyhook believes Google founder Brin may have disparaged its technology in talks with Apple

In 2010 Skyhook brought a patent infringement complaint in U.S. federal court and a simultaneous unfair competition complaint in Massachusetts state court against Google. Skyhook alleged that Google (despite negotiations pertaining to a possible cooperation) bullied two major Android OEMs (Samsung and Motorola) out of partnerships with Skyhook in order to promote its own Google Location service, which Skyhook claims infringes on some of its patents. The competition lawsuit didn't go anywhere in a legal sense, but it's never easy to substantiate an unfair competition claim. Not everything that is perceived as unfair, disrespectful or in some other ways debatable is necessarily against the law. Nevertheless, thanks to Skyhook's action hundreds of pages of documents relating to Google's heavy-handed control over Android came to light.

Now there's another situation in the Skyhook v. Google proceedings -- this time in the patent infringement action, which will likely go to trial next year -- in which Google might appear unfair. Note the emphasis on "might" and the breadth of the word "appear". I'm not going to accuse Google of anything here until the facts are on the table for the world to see and suggest that Skyhook's allegations and suspicions are correct. Given that Skyhook's previous portrayal of Google's tactics were supported by documents that showed up in litigation, I wouldn't underestimate them this time, but Google at least deserves the benefit of the doubt. Also, it's important to keep in mind that this dispute has become increasingly acrimonious.

On Monday Skyhook brought a "motion to compel Google Inc. to produce Mr. Patrick Brady for a deposition and to produce certain documents responsive to Skyhook's document requests", which I have uploaded to Scribd. According to Skyhook, Mr. Brady was identified by Google as "one of only two [...] witnesses [...] knowledgeable about sales and marketing of the accused products, and the only person [...] knowledgeable about Android relationships, the relationships with its original equipment manufacturing partners to whom Google distributes and who use Google's accused Google Location products and services" (emphasis in original). I can't remember having read or heard Mr. Brady's name prior to today's motion. But a much more famous person -- Google founder Sergey Brin -- is the person allegedly holding "certain documents" Skyhook wants to obtain.

Skyhook noticed a deposition of Mr. Brin in February. The motion says "Google refused to produce any documents from Mr. Brin's possession or to offer him for a deposition, threatening sanctions". Apparently Skyhook would have been willing to withdraw this request provided a declaration by Mr. Brin "confirming that he has not participated in the activities Skyhook has outlined as relevant to its case and does not have any firsthand knowledge in these areas", but Google refused to provide such written testimony and "merely asserted that Mr. Brin did not have relevant knowledge".

I don't want to read too much into this refusal for the time being. The further process will show whether Google had a good-faith basis for believing that Skyhook was just requesting a so-called apex (top-level executive) deposition to cause Google inconvenience (Google counsel told Skyhook counsel that this constitues "harassment") or whether Google has something to hide.

Before insisting on a deposition of Mr. Brin, Skyhook agreed to "take further discovery". In this context it provided to Google a list of search terms. It wanted to see those of Mr. Brin's documents matching the search keys. The first search term is Skyhook's name; the second one is the name of its CEO; the third one of a Skyhook executive and founder; the fourth one relates to a MacWorld event at which Steve Jobs commented very favorable on Skyhook; and the fifth and fixth terms have to do with location-based services and using WiFi for location-positioning. But Google's counsel told Skyhook's counsel that such a search (and even one with broader terms) delivered no positives for the first four terms. Skyhook also wants the more generic terms to be used.

With respect to the third search term, here's what Steve Jobs reportedly said about Skyhook and the fact that Skyhook and Google are comeptitors:

"Let's take maps. There is no GPS inside the iPhone. We got this great new user interface, but how do we actually arrive at the location? Well, we're working with two companies to do that, Google, and a company called Skyhook Wireless.

Let me start with Skyhook. What they have done is they’ve driven the US and Canada in little cars with antennas on them and GPS receivers in them, and they've mapped WiFi hot spots. They are now doing Europe and starting in Asia, and they got 23 million WiFi hot spots in their database, and so, when we go to find a location, it turns out you pick up beacons from these hot spots, even if you are not connected to them, and then you pick up the beacons, we triangulate the beacons, look in their database, and it tells us where you are. Isn't that cool? It’s really cool.

And Google is doing basically the same thing with triangulating cell tower information off the cellular network, and we’re using both of them, and it works pretty doggone well. So that is how we find location on the iPhone."

After these quotes from Steve Jobs, Skyhook's motion presents a theory as to why Mr. Brin's contact with Apple may be relevant to the Skyhook v. Google patent infringement case: Skyhook believes "Mr. Brin had discussions with Apple representatives about Apple's announcement regarding Skyhook's location technology and Google's displeasure with it". In correspondence with Google's counsel, Skyhook's counsel also said that "Mr. Brin appears to have received briefings about Google's effort to place Google's location services in the iPhone (instead of Skyhook or other third parties) so that Google could collect the user's WiFi information".

This is how Skyhook tries to make a connection between Mr. Brin's discussions with Apple and the patent case in the District of Massachusetts:

"Having apparently disparaged Skyhook’s technology to Apple, Google proceeded to then launch the same Wi-Fi based location technology by infringing Skyhook’s patents. Thus, Mr. Brin's statements and documents may be relevant to Google’s willful infringement because they would show Google’s awareness of Skyhook’s technology at the highest echelons of the company. Mr. Brin's statements and actions may also be relevant to nonobviousness of Skyhook’s patents if in fact Mr. Brin disparaged the same methodology that Google soon after employed and monetized."

Based on what Skyhook will be able to find out from documents, it may later move "to compel Mr. Brin's deposition". For now it's just seeking documents.

Google's lawyers argued that Mr. Brin was merely one of "roughly 5,000 persons {who] attended MacWorld 2008". Skyhook says that "very few if any of those 50,000 persons had a picture of their conversation with Apple’s Steve Jobs taken at the very same event and preserved for posterity", which according to Skyhook "shows that at the time Mr. Brin had unprecedented access to Apple's high-level executives, and makes it at least more likely that he in fact engaged in the discussions with Apple that Skyhook understands related to its technology". You can find that picture on page 201 of the PDF document containing a declaration in support of Skyhook's motion and all exhibits.

Skyhook's motion does not claim that whatever Mr. Brin is believed to have said about Skyhook led Apple to drop its technology from the iPhone in 2010.

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