Wednesday, December 25, 2013

Google tries to get Rockstar's Android lawsuits transferred out of the Eastern District of Texas

On Halloween 2013, the Rockstar Consortium -- the winner of the 2011 Nortel patent auction -- brought patent infringement actions against Google and seven of its Android hardware partners (Samsung, Huawei, ZTE, LG, HTC, Pantech, and ASUSTeK) in the Eastern District of Texas. The lawsuit against Google itself involves seven "associative search engine" patents, while the seven patents-in-suit in the actions against Android OEMs cover a diversity of hardware and software features.

So far, no defendant has answered to the complaint. They were all granted extensions.

On Monday (December 23), Google filed a declaratory judgment lawsuit in the Northern District of California against Rockstar and its MobileStar Technologies subsidiary over the seven patents-in-suit in the Android OEM cases (this post continues below the document):

13-12-23 Google N.D. Cal. DJ Action Against Rockstar Consortium by Florian Mueller

The complaint contains a lot of rhetoric, accusing Rockstar of having "placed a cloud on Google's Android platform" and threatening "Google's business and relationships with its customers and partners, as well as its sales of Nexus-branded Android devices". One tidbit previously unknown to me is that "MobileStar [the subsidiary that is a co-plaintiff in the Rockstar suits against Android device makers) was formed for litigation one day before Rockstar filed its lawsuits against Google's customers". Other than that, it's the usual anti-troll rhetoric, blaming Rockstar's shareholders, with a particular focus on Apple, for the fact that Google's aggressive pursuit of the Nortel patent portfolio (as a matter of fact, Google won the "stalking-horse bid" in 2011) forced other industry players to join forces in order to clear the market of these patents. If not for Google's aggressive pursuit, these patents would have sold at a fraction of the price.

Google alleges that "Rockstar intends the Android OEM Actions to harm Google's Android platform and disrupt Google's relationships with the Android OEM Defendants". Google does not adduce any particular evidence at this stage; it just refers to an Ars Technica article.

I've previously commented on Google's hypocrisy in connection with patents, such as in an op-ed published last month on The Hill's Congress Blog, entitled "Sue when you're winning".

Presuambly none of the defendants wants the liability issues and remedies to be decided in the Eastern District of Texas. But in order to move the Rockstar Lawsuits out of Texas, they need to present a superior alternative. We'll see soon whether they all advocate that their lawsuits be moved to Northern California, where they could and would be consolidated with Google's declaratory judgment action, or whether some or all OEMs additionally bring declaratory judgment actions in districts where their U.S. subsidiary are based.

Rockstar will presuambly request that Google's DJ action be transferred to the Eastern District of Texas and consolidated with the earlier-filed infringement cases.

Quinn Emanuel filed the Northern California action on Google's behalf. Quinn Emanuel has already done, and continues to do, a lot of work for Android device makers (especially Samsung, HTC and Motorola). It remains to be seen whether all defendants agreed that QE should lead their collective defense, or whether some of them have other preferences.

The case was filed with the San Jose division (that's the one closest to Google's Mountan View HQ) and automatically assigned to Magistrate Judge Paul S. Grewal, known for his work on discovery disputes (including the "Patentgate" affair, which also involves QE) on the Apple v. Samsung cases Judge Lucy Koh is presiding over. If any of the parties declines to proceed before a Magistrate Judge, the case will have to be assigned to a United States District Judge. I'm sure Judge Grewal could handle a case like this just as well as any district judge, but chances are someone will want the case reassigned.

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