Google Gives A Roadmap To Their Defense Strategy In The Vringo Patent Suit

Last week, Google filed a motion for Summary Judgment in the Vringo case.   This docket finally hit the free Justia dockets this week, and it basically gives you a pretty decent picture (despite all the redaction) of what Google’s defense will look like.

For a quick summary of the case: there are two issues of patent law at hand here:

1) infringement: did one party ($GOOG) violate the patent that the other party ($VRNG) owns?

2) invalidity: is that party’s patent (VRNG) even valid, or did other patents that came before it “anticipate” the claims in the patent?

Google is actually arguing a little bit of both: they are saying that they didn’t infringe on VRNG’s patents, and also that other prior patents “described the same purported invention.”   In Google’s own language:

“First, Plaintiff cannot show a genuine issue of material fact as to whether Defendants infringe the asserted patents; the facts show Defendants do not…”

“Second, two prior art patents – U.S. Patent No. 6,185,558 to Bowman et al. (“Bowman”) and U.S. Patent 6,006,222 to Culliss (“Culliss”) – describe the same purported invention, and anticipate all asserted claims as construed by the Court and interpreted by Plaintiff. Thus, summary judgment of invalidity for all asserted claims under 35 U.S.C. § 102(e) is appropriate.”

Now, stepping back for a minute:  readers will remember that VRNG had been pushing for sanctions against GOOG – to get these prior art references thrown out.    VRNG lost that motion, so the prior art will be allowed.   However, it seems highly unlikely that Google will win summary judgment because the “facts” of the case are in dispute.   Far be it from me to rely on Wikipedia for legal advice, but their “Summary Judgment” definition includes this simple criteria:

In American legal practice summary judgment can be awarded by the court before trial, effectively holding that no trial will be necessary. Issuance of summary judgment can be based only upon the court’s finding that:

  1. there are no disputes of “material” fact requiring a trial to resolve, and
  2. in applying the law to the undisputed facts, one party is clearly entitled to judgment.

With $GOOG and $VRNG, there are clearly a number of disputes:  VRNG says GOOG infringed, GOOG says they didn’t infringe – their search is different.   GOOG says VRNG’s patents are anticipated by prior art, VRNG says the prior art doesn’t invalidate their patents.  etc.

So I think it’s widely expected that Google’s motion for summary judgment will be denied.  Moving on: let’s take a snipped from Docket 247, where GOOG mentions:

“Further, on August 29, Plaintiff’s expert (Dr. Jaime Carbonell) submitted his Rebuttal Expert Report Regarding Validity in this case.  Dr. Carbonell’s report addressed Bowman, Culliss, and Ryan at length, contending that none of these references invalidate the Asserted Patents.”

I mention this only because I don’t think there is any other record of anything Dr. Carbonell has said about this case so far, and he will be a key (if not THE key) witness for $VRNG.     The bottom line is that Dr. Carbonell will argue that the prior art does not invalidate VRNG’s patents (of course this shouldn’t come as a surprise).   Now what will Google argue?  Well, that’s what their “memorandum in support of defendants’ motion for summary judgment” shows us.

Cliff notes: they’ll argue that Dr. Carbonell is wrong.   Google’s own summary (page 20):

“The Bowman and Culliss references both anticipate every asserted claim of the ‘420 and ‘664 Patents. As detailed below, Bowman and Culliss use a combination of feedback-based filtering and content-based filtering to rank and filter search results for relevance to a query. These disclosures anticipate every asserted claim of the ‘420 and ‘664 Patents as construed by the Court and interpreted by Plaintiff.”

I encourage all interested parties to read the memorandum (for Google’s actual explanation of WHY Carbonell is wrong), if only to experience the feeling of your eyes glazing over and your brain wandering off to greener pastures.   I want to re-emphasize the point: this is very much not clear cut.   Anyone who tells you that this case is a slam dunk for either side is lying to you.

As @lashonj notes, both sides have requested a jury trial.  Will a jury’s eyes cloud over listening to this technical back and forth?  If they do, will that result in them saying “It looks different enough to me: Google has been doing this for a long time anyway, and they’ve been doing it better than anyone else’s idea: they win”  or will their conclusion be: “I don’t understand what Google is saying – these two things look pretty darn similar.  I think that they’re using Vringo’s idea.”   Will Google even want to take the risk of putting this in a jury’s hands, or will they settle?

These are the million/billion dollar questions, and as I noted previously, there are no easy answers.   As I noted in my first post on this subject:

“Nothing is easy in the markets – there is no free money.  Beware of anyone who tells you otherwise.”

 

Disclosure: I am long $VRNG. no positions on $GOOG

related:

Memorandum in Support of Defendants’ Motion For Summary Judgment

Latest Chapter in VRNG-GOOG “he said, she said”

Some Thoughts on the Vringo-Google Patent Battle

Vringo Justia Dockets

Altucher: “Why Google Might Be Going to Zero

Groklaw: “Another Patent Attack on Google With More Wild $$$ Predictions

Vringo IP Site

KD: “Confirmation Bias Is A Portfolio Killer

 

-KD

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