Wednesday, August 28, 2013

Patents firm Intellectual Ventures accuses Google's Motorola Mobility of "transparent attempt to stall"

Google's Motorola Mobility has to defend its Android-based devices against two Intellectual Ventures lawsuits, one filed in the District of Delaware in 2011 and one filed in the Southern District of Florida about two months ago. The earlier-filed case is scheduled for a January 2014 trial, and at the end of my post on the second complaint I already said that "I wouldn't be surprised to see Google request a transfer of this new case from Florida to Delaware in order to consolidate it with the case pending there and to potentially delay the trial". That has indeed happened, and this week IV has responded to that motion, as well as to another motion (asking for a stay of the Florida proceedings until the transfer motion is adjudged), and it has amended its complaint in response to a motion to dismiss for failure to state a claim.

Google branded IV as a troll for suing its Motorola Mobility subsidiary, though Google was one of IV's early financial backers (as I mentioned in my report on the 2011 complaint) and has been engaging for quite some time now in the utterly trollish enforcement of a repeatedly-found-invalid patent in Germany against Apple, affecting Apple's users in Germany as opposed to the company's bottom line. Furthermore, what IV's other critics primarily express concern about is transparency in patent ownership, and Google doesn't seem to promote, let alone practice, such transparency. Also, while IV can be described as a patent hoarder, Google has become quite a patent hoarder as well. Most recently it bought some patents from Foxconn, and that's just one of many patent purchase agreements it's entered into. Unlike IV, it makes products and offers services, but a patent hoarder it is.

In the official documents in this case, Google has not made a "troll" kind of argument yet. It just denies everything (as defendants typically do in these cases) and seeks to delay. IV, however, keeps pushing hard for a swift resolution. In order to speed things up, it filed an amended complaint not long after Google brought a motion to dismiss (this post continues below the document):

13-08-26 First Amended IV Complaint (S.D. Fla.) Against Motorola by Florian Mueller

Google's motion to transfer venue is the normal course of business, but it has a huge credibility problem here because Motorola Mobility itself stressed its ties to the Southern District of Florida, where it has hundreds of employees mostly working on R&D, in its disputes with Apple and Microsoft. Apple was denied a transfer to another district, while Microsoft overcame Motorola Mobility's opposition to a transfer two years ago. In its opposition to Google's motion to transfer its case, IV basically has to do two things. On the one hand, and that's the easiest part, it can quote from and point to Motorola Mobility's own arguments in those past cases claiming that the Southern District of Florida is the right place for patent infringement cases to which it's a party. Among other things, it stressed that its Florida operation is just 30 miles from the courthouse. On the other hand, IV addresses Google's claims that certain lawsuits filed in the District of Delaware -- the first IV v. Motorola Mobility case as well as litigation brought by IV against other defendants over partly the same patents -- make that district the most efficient choice. IV argues that none of the patents it asserts in Florida are related to the ones it asserts against Motorola Moblity in Delaware, and it argues that any Delaware rulings on patents asserted in Florida can be notified to the Florida court. I think IV has some strong points here, and Google appears to have overstated the overlaps between the cases, but a transfer might happen, and I don't think IV has been able to show that Google's motion for a transfer is baseless. I've seen stronger reasons for a transfer, but also weaker ones.

But in parallel Google brought a rather unusual motion to stay the proceedings in Florida pending resolution of its motion to transfer the case to Delaware. In IV's words, "Motorola's motion to stay is a transparent attempt to stall", and I agree. Typically discovery and other work related to a litigation continue. Sometimes the venue transfer decisions come down after substantial progress has been made, but then the whole record is simply transferred to the destination district. In cases in which two parties already have litigation pending in another district, or in which even just one of the patents-in-suit has previously been or is simultaneously being litigated in another district, there's always a basis for bringing a motion for a transfer, and the transfer motion is legit, but a stay pending its resolution reminds me of the saying that justice delayed is justice denied. The fact that Google engages in more than the usual degree of stalling could be an indication that it's more concerned about IV's patents-in-suit than it admits in public.

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