The Latest Chapter in Vringo and Google’s He Said / She Said

Yesterday I relayed a plain-English interpretation of some back and forth legal documents in the $VRNG$GOOG patent case.  I would suggest that all interested parties take a look at yesterday’s post in its entirety, but meanwhile I’ll copy & paste that same email again here, because we have new information to evaluate (Docket #222)

from @arper (sent this past weekend):

 

“The gist of the case is Google trying to prove invalidation due to them using patents/ideas prior to VRNG’s patents (Prior Art or  Anticipatory Art). They repeatedly asked VRNG for exact clarification of where Google was infringing and for how long? VRNG only would say “we found out where you infringed but we’re not gonna tell you specifically.

GOOG says: “How long?”

VRNG answers: “Uh, well AT LEAST back as far as Dec 3, 1998

Google says: “That’s not good enough, how can we do our prior art search w/o an exact date?

They finally had to get the judge to COMPEL VRNG to set the date in stone. This had NOTHING to do with the Markman hearing, which is solely about establishing the exact definition of terms in the infringement suit (and comes from a ruling involving Markman that said the  wording of the patents is up to a judge to decide and not a jury, thus, a hearing before the judge.  The current kerfuffle is because Google, AFTER the Markman hearing, brought up 3 new cases of “prior art” that they had not previously disclosed to VRNG. VRNG calls foul play.

But Google says “Hey, there’s ZERO in our discussions that said we couldn’t continue our investigations, tough shit. Furthermore, how the hell could we do “prior art” research until we had the exact date? You didn’t give us the exact date until we compelled you to after the Markman hearing!

VRNG says: “But we based our infringement case on your telling us about the 6-12 previous prior art cases you told us about and you TOLD us you weren’t going to bring up any more back in March!!

GOOG says: “Sorry dudes, you misunderstood. We said we had nuthin’ further AT THAT TIME because you wouldn’t give us the date nor was the language clear until the Markman hearing. Now that that is clear and the court finally compelled you to give us what we needed to do our complete search, we did our search, and came up with stuff that predates your patent.”

VRNG says: “But if we’d known, we might’ve looked harder for info our idea went back further!

Google says: “You got it backwards guys. Your idea’s date of conception and implementation IS what it is. It is NOT dependent on what our prior art search turns up..

Google set a trap and VRNG got snared. How the judge will read it as dirty pool or fair game is totally unknown. I have no clue (as you would support) HOW the judge is going to rule this, or if it is a gamechanger, but VRNG’s angry response indicates Google struck a nerve. I think the flurry of filings you are seeing this week indicates Google is pressing its advantage HARD! Is it desperation or is it piranha? I don’t think I’ll bet the farm either way……”

Now, today, we get Docket # 222, which is Vringo’s latest response.  Note this portion:

“Defendants seem to argue that because I/P Engine supplemented its priority date-related interrogatory response, that somehow excuses Defendants’ untimely disclosure of the three newly identified references; that is not the case. In every response, the priority date has never changed—it has always been December 3, 1998.

Specifically, I/P Engine identified December 3, 1998 as the effective date for the patents- in-suit on December 7, 2011 (Ex. 3); and again, on February 13, 2012 (Ex. 4); then again, on May 11, 2012 (Ex. 5); and then again, on July 2, 2012 (Ex. 6). It is thus inexplicable as to how Defendants have been prevented from focusing their prior art searches on references that pre- date December 3, 1998. The only difference between I/P Engine’s discovery responses is semantic – the language was merely modified to accommodate and quell Defendants’ unjustified concern that I/P Engine was somehow withholding information.”

In plain-English, you can read that as:

“Hey d-bags, we never changed the relevant date – here are 4 earlier references in this suit where we gave you the 12/3/98 date that you said was the reason you were late in coming up with these new prior art references”

Vringo also addresses the “it wasn’t clear until the Markman hearing” part:

“Defendants assert that “the status of Bowman, Culliss, and Ryan as anticipatory art did not become clear until after Plaintiff finally disclosed its contentions regarding the “collaborative feedback data” limitation during the Markman hearing, and after the Court issued an Order excluding the “users with similar interests or needs” requirement from that limitation.”

According to Defendants, “it was not until the Markman hearing on June 4 that Plaintiff first disclosed what it meant by the ‘users with similar interests or needs’ requirement in ‘collaborative feedback data’” so “Defendants’ invalidity position could (and did) expand to include prior art references that do not compare user profiles to determine which users have ‘similar interests or needs.’” Defendants’ assertion is without merit.

I/P Engine has always maintained that clickthrough data is “collaborative feedback.”   (“Google AdWords receives feedback (in the form of clickthrough data) about information, e.g., advertisements, considered by the other users.”).   I/P Engine stated, with no ambiguity, that to Defendants as early as its preliminary infringement contentions on November 7, 2011 (Ex. 2); and Google confirmed its understanding of it. D.I. 127, Ex. 22 at 40 and Ex. 23 at 10. Thus, even under Defendants’ logic, Defendants have always been on notice that I/P Engine interpreted the claims in a manner that required Defendants to consider I/P Engine’s infringement positions and constructions for invalidity purposes. To say otherwise would mean that Defendants blatantly ignored I/P Engine’s contentions when searching for prior art references – which is not a sufficient excuse for violating Rule 26. Defendants had an obligation to consider prior art (particularly that it was already aware of) that would allegedly fall within both sides constructions.”

In plain-English, that translates to:

“Are you guys f*cking kidding me?   The exact terms were indeed defined at the Markman hearing, but our claim that Google has violated our definition of “collaborative feedback data” is the same as it always was – just look at all these prior times you acknowledged that you understood that.”

These filings are, if anything, probably bullish for $VRNG in my view, but more importantly, they highlight why the average layman (myself included) needs to be incredibly careful when getting involved in minutiae of the law in cases like this:   both sides’ arguments sound compelling and reasonable, because we, the lay-reader, are not experts in the details and interpretations of The Law.  In other words, Vringo’s response makes perfect sense from the “normal, sensible, reasonable person” perspective, but The Law doesn’t always work like a normal, sensible reasonable person would.   I am far from expert-enough in these areas to conclude “What Google is arguing is illegal” –  it may very well be the case that Google’s argument, despite sounding strange to a lay-person, is within the letter of the law.

Aside, I could probably tell a story here about when I was a soccer referee growing up:  we were instructed on both the letter of the law, and the spirit of the law in evaluating violations.  Our national legal system, however, is much more about the letter of the law (although of course we do have an entire system set up to interpret the spirit of the law in accordance with that said letter of the law!).   So is Google out of line with the spirit of the law?  Perhaps/maybe/probably… But are they out of line with the letter of the law (in terms of the form of argument so far – not in terms of the actual patents, which we haven’t even begun to discuss yet)?   I don’t know – the answer to that question may very well be “no, they are not,”  and yet it may be close enough that when you combine it with the spirit of the law, well, who knows…  That’s why we have so many patent lawyers – because this stuff isn’t easy!

anyway…

disclosure: I am long $VRNG.

related:

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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