Liberty Media's TruePosition acquires Skyhook, touts its patents: implications for Google lawsuit?

Skyhook Wireless, a company that has been suing Google for more than three years over various location-positioning patents, with a trial likely to take place (finally) this year, has just been acquired by Liberty Media's TruePosition subsidiary. The official announcement says that "Skyhook's technology provides TruePosition with another important tool in [its] technology and patent portfolio that perfectly complements [its] existing offerings" (emphasis added).

As Re/code mentions in its report on the deal, the [Skyhook-Google] court battles have revealed all sorts of interesting information about the control Google has exerted over the Android ecosystem". Google's heavy-handedness concerning Android drew a lot of additional attention last week after Google's mobile app distribution agreements with Samsung and HTC were published. Also last week, Galen Gruman wrote on Infoworld: "Meet AOSP, the other [i.e., open-source] Android, while you still can", going on to explain how an increasing part of the Android codebase is closed and the open-source components are nearing the point at which they won't represent a competitive mobile operating system.

It's too early to tell what effect Liberty Media's acquisition of Skyhook Wireless will have on the pending Google patent litigation. If the case does go to trial this year, Google will face a well-heeled opponent that can afford even more protracted litigation and (even international, if necessary) escalation. But the "If" is the question. While it would make sense for Liberty Media to aggressively enforce Skyhook's IP (which was apparently the reason for the deal) in order to monetize what it has acquired, it's also possible that Skyhook's new owners will be more willing to settle the matter with Google. But even if Liberty Media is prepared to settle, Google is not known to be exceedingly willing to pay patent royalties, so the case may have to go to trial anyway. It wouldn't be logical for Liberty Media to acquire IP and tout it in a press release only to dismiss a case without getting royalties. In doing so it would devalue Skyhook's patent portfolio and call into question the rationale for the transaction. So I think there still is a fairly high probability of the case going to trial.

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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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Patent dispute heats up as Google files motion to sanction Skyhook for allegedly frivolous claims

Tensions are rising between Google and Massachusetts-based Skyhook Wireless, a small company in the location-positioning field that, in parallel to suing Google for patent infringement, complained about bullying tactics. Skyhook recently stepped up its patent assertions against Google, resulting in a consolidated, bloated case involving 98 patent claims pending in the District of Massachusetts. Now Google has made an unusual aggressive move by asking the court on Monday to impose sanctions on Skyhook for violation of Rule 11, i.e., for bringing claims so frivolous that it had no good-faith reason to believe that these can ever succeed. If Google's motion succeeded, one of Skyhook's patents-in-suit will be dismissed without prejudice and Skyhook would have to bear "costs and attorneys' fees incurred in connection with [the] motion". Here's Google's motion (this post continues below the document):

13-06-10 Google Motion for Rule 11 Sanctions Against Skyhook by Florian_Muelle_439

The patent Google claims Skyhook is asserting in bad faith is U.S. Patent No. 8,031,657 on a "server for updating location beacon database". It's a continuation of a previously-asserted patent, U.S. Patent No. 7,414,988 (same title). The '988 patent was found invalid by the court, so Skyhook needs a successful appeal to resuscitate it. And Judge Rya Zobel has construed certain disputed terms of the earlier patents-in-suit, which is why Google believes Skyhook simply must know that the newly-asserted '657 patent can't possibly be found infringed: it was granted in 2011, and Google says that prior to the granting of this patent is stopped collecting access point data with cars (such as the Street View cars), which is the kind of systemic scanning with vehicles that Google claims is an indispensable requirement for an infringement finding under the court's construction of the related '988 patent.

Counsel for Skyhook stresses that his client and its legal team don't take allegations of sanctionable conduct likely, and disagrees with Google's lawyers that whatever happened with respect to the '988 patent makes it impossible for Skyhook to prevail on the '657 patent. Google attached to its motion for sanctions the related correspondence, and I've uploaded three of those documents to Scribd:

• A May 22, 2013 email Skyhook's counsel sent to Google's counsel in response to an early draft of the motion finally filed yesterday. In that response Skyhook's counsel says Google misreads the court's claim construction and points to differences between the '657 and '988 patents. For example, the older ('988) patent contains the term "avoid(s) arterial bias", while the '657 patents merely relates to the reduction of arterial bias. Another difference is that the '657 patent only requires "a plurality of Wi-Fi access points in the target area" to be included in a database, the earlier patent required "substantially all" access points to be included. Also, Skyhook argues that, with "well over 200 million Android smartphones and tablets [that] have now been activated in the US", and Google's past data collection with CityBlock vehicles, the data collected by Google on access points is "systematic, or at a minimum, equivalent to systematic", which would satisfy another claim limitation. Skyhook's counsel claims that "the claims of the 657 patent, as well as all other asserted Skyhook patents, were and are infringed by Google, both before and after Google asserts it ceased its CityBlock collection of Wi-Fi access point data".

• In a June 6 letter Google's counsel insists that Skyhook withdraw the '657 patent from this case or else there would be a motion for sanctions. Among other things, Google argued that "reduce arterial bias" and "avoid arterial bias" are synonymous, and that Skyhook's infringement contentions are based on a claim construction that runs counter to an express disavowal of claim scope in the shared specification of the '657 and '988 patents.

• Yesterday Skyhook's counsel responded to Google's lawyers and said that they simply disagree, but that doesn't mean that Skyhook is acting in bad faith:

  "We are in receipt of your letter to me dated June 6, 2013 and have considered it carefully. The points you make are claim construction and infringement arguments with which we disagree. Those disagreements do not justify the Rule 11 motion that you say you intend to file. Such a motion would be without merit and inappropriate. Skyhook reserves all rights should Google proceed with filing its threatened motion."

After this exchange, Google went ahead and filed its motion, against Skyhook is now going to defend itself vigorously. After the court has ruled on this, we'll know whose credibility has ultimately taken a hit.

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Google says Skyhook's assertion of 98 patent claims makes lawsuit unmanageable

The first filing in a smartphone-related patent lawsuit bearing a June 2013 date was made by Google, which a few minutes after midnight by Eastern Time brought a "motion to require Skyhook to reduce the number of asserted claims and provide adequate infringement contentions" in the parties' federal litigation in the District of Massachusetts. According to the motion, Skyhook "is asserting infringement of 98 patent claims across 13 patents", which Google believes "make this case unmanageable, and it would be impractical to attempt to try to a jury a case involving even a fraction of the claims Skyhook is asserting". Therefore, wants the district court to "require Skyhook to reduce the number of asserted claims to a manageable number, for example a limit of 20 non-duplicative claims, and to provide adequate infringement contentions".

The case actually became so inflated because Google succeeded in getting a second lawsuit by Skyhook, filed in September 2012 in Delaware over nine additional patents, transferred to Massachusetts (where the first such case had been filed two years earlier) and consolidated into the earlier-filed case, resulting in considerable delay (the trial slipped into 2014). Google, like other defendants, wanted a delay. But it also wants to reduce the number of patents it has to defend itself against whenever the case may ultimately go to trial.

Here's Google's motion, which also lists all of the current assertions (this post continues below the document):

13-06-01 Google Motion to Require Skyhook to Narrow Claims

The list of asserted claims includes a total of nine claims from the '245 and '988 patents, which the court declared invalid on summary judgment and which Skyhook is only asserting (Google wants them dismissed anyway) to preserve its rights on appeal and a possible remand. These claims are, therefore, irrelevant to the question of whether the case is triable to a jury: a jury would never have to look at patents the court previously declared invalid.

Google does have a point that some reduction of the number of claims is necessary. I don't think Skyhook ever expected to take all of the asserted claims to trial. Presumably Skyhook wants more clarity on Google's defenses before it drops any patents. That may be the challenge here: determining a course of action that enables narrowing on a reasonably informed basis.

It's unusual for a defendant to bring a formal motion to require such a reduction. Usually the courts take such initiatives. Judges have two kinds of leverage to require U.S. patent plaintiffs to narrow their cases:

• Under Katz (a decision cited by Google in its motion) they can throw out duplicative claims. Plaintiffs can, however, often demonstrate that claims are non-duplicative.

• They can tell plaintiffs that there will be further delay unless they cooperate and narrow their cases.

Judges can accelerate the process through summary judgment rulings, some of which result in the immediate removal of patent claims while others at least provide an indication as to which claims are not too likely to succeed at trial.

Google says in its motion that it "intends to file a separate expedited motion seeking relief from the schedule shortly". Again, defendants generally try to delay. I'm sure Skyhook will find a way forward for its case.

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Skyhook v. Google patent trial slips into 2014 as result of consolidation of two lawsuits

Skyhook Wireless sued Google in 2010 for patent infringement and anticompetitive conduct after the company controlling Android bullied Samsung and then-independent Motorola out of partnerships with Skyhook concerning its location-positioning software. Two of the four patents it originally asserted were dismissed, and the other two could finally have gone to trial in the District of Massachusetts this summer, but the court granted Google's motion to consolidate another Skyhook v. Google lawsuit over nine more patents, filed in September 2012 in Delaware and transferred to Massachusetts in January 2013 at Google's request, into the earlier-filed one. As a result, a lot of homework still has to be done before the consolidated case can be tried, and there won't be a trial this year -- but when the case finally does go to trial, it will be considerably bigger than otherwise.

Consolidation of the two Skyhook v. Google cases was ordered more than two weeks ago, but became discoverable only now because the parties filed a stipulation regarding the schedule for the consolidated case, which references at the start the oral order to consolidate:

"WHEREAS at the hearing held on March 14, 2013, the Court ordered consolidation of Civil Action No. 1:10-cv-11571-RWZ [Skyhook's first patent lawsuit] and Civil Action No. 1:13-cv-10153-RWZ [the second one]."

A technology tutorial and claim construction hearing for the patents asserted in the second complaint will be held (if the court approves this stipulation) on October 10, 2013. The court will have to set a new trial date for the consolidated action. Before consolidation was ordered (but at a time when it was clear that it might very well happen), Skyhook proposed to hold the trial in June 2014, while Google did not take a position on a suitable trial date.

Google has thwarted Skyhook's plan of two parallel cases, one in Delaware and one in Massachusetts, but I guess Skyhook and its lawyers knew from the beginning that a transfer and consolidation were fairly possible. The only way to avoid it would have been for Skyhook to bring its second lawsuit much later (for example, after a trial in the first case, or so close to the trial that the first case would not have been affected by the second one). But after two of its four original patents-in-suit were tossed, Skyhook probably thought it needed to press on with its second round of assertions at the earliest opportunity -- even if this might result in consolidation and delay.

Considering how rapidly this industry evolves, it's unbelievable that a patent infringement suit filed in 2010 would go to trial in 2014 (which isn't even guaranteed as there could always be further delay). But Google can't solve its Skyhook problem merely by stalling. Eventually Skyhook will get its day in court -- and it most likely won't take Google's patent pledge.

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Skyhook's nine-patent lawsuit against Google transferred from Delaware to Massachusetts

Skyhook Wireless, a maker of WiFi-based location-positioning technologies, will have to be patient in its patent assertions against Google, unless it finally realizes that it has to sue in such jurisdictions as Germany, not the United States, if it wants to make headway and build settlement pressure in the foreseeable future. Skyhook, which started suing Google in 2010, now faces considerable risk of not getting its day in U.S. court (i.e., a patent trial) before 2014 or 2015, even though a trial in Massachusetts over two patents had been scheduled for August 2013.

On Tuesday afternoon by local time, Judge Robert G. Andrews of the United States District Court for the District of Delaware granted a Google motion to transfer an infringement action Skyhook brought in his district in September 2012 over nine patents to the District of Massachusetts, where Skyhook brought its first patent lawsuit against Google (over originally four patents, two of which have been dismissed) 28 months ago. In Massachusetts, Skyhook had also brought a state lawsuit over competition issues, which exposed some of Google's Android-related practices (but that's the only thing that competition lawsuit has achieved).

The direct effects of the transfer aren't the worst part: both Delaware and Massachusetts are relatively slow districts for patent infringement cases, and Skyhook is based in Massachusetts, which could be helpful with a view to a jury trial. But in October Google told the court that after a successful transfer of the 2012 case to Massachusetts it would bring a motion in to consolidate this one with the 2010 case. Should the motion to consolidate succeed, Skyhook won't get an August 2013 trial. There would be a need to develop an evidentiary record over nine more patents, and for various pre-trial pleadings and decisions, all of which would delay resolution at least into 2014 or, more likely, 2015.

The whole idea of such a transfer to a district in which an earlier case was filed is to leverage certain synergies. There are some efficiency gains if you simply have the same judge oversee a case between two parties involving the same field of technology. There can also be a recycling of evidentiary records. Those efficiency gains wouldn't require wholesale consolidation of the two cases, but courts are generally very interested in reducing the burden on juries, holding one trial rather than two.

Having followed the argument over the possible transfer (and many such arguments in other cases), I'm not surprised that Google's motion succeeded. It appeared to me that Skyhook's arguments against a transfer (rather limited overlap, but some overlap, of the issues) were just about good enough that a court with a strong desire to keep the case in its district would have been able to deny Google's motion, but fell far short of what was needed to be likely to fend off Google's world-class gamesmanship. I have yet to see a plaintiff doing well in Delaware within a reasonable time frame. It was a nightmare of a district for Apple against HTC. Nokia, which is also much bigger and far more sophisticated in the patent game than Skyhook brought some cases there against HTC and ViewSonic, and instead of setting a reasonably fast schedule, the court there just sends the parties to mediation without actual guidance on the legal strength of the cases.

I have checked the online register of the European Patent Office, and Skyhook has filed about two dozen European patent applications, some of which have been granted. If I were in Skyhook's situation, I would bring infringement cases in Germany at the earliest opportunity, ideally through a law firm that already has won decisions against Google's Motorola or is presently suing it here. The cases here could be brought against Google and/or Motorola. Litigation in Germany isn't as cheap as some people think, but on a per-patent basis it's much less expensive than in the United States, and infringement rulings in a court like Mannheim come down within less than a year of filing a complaint. If Skyhook's resource constraints don't permit multijurisdictional litigation, I think Skyhook should consider withdrawing at least parts of its nine-patent lawsuit, which would probably make sense anyway given that after the consolidation Google hopes to win (and may very well win) there would be 11 patents in play in the District of Massachusetts, resulting in tremendous pressure on Skyhook to narrow the case before a trial.

Finally, here's the Delaware order (click on the image to enlarge):

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Skyhook and Google agree on August 2013 patent trial date -- but Google will seek further delay

Skyhook Wireless is the smallest entity among all the Android patent plaintiffs I'm following, but it's a disproportionately interesting one. After business negotiations between Skyhook and Google failed, Skyhook signed up Samsung and Motorola as strategic partners, but Google allegedly exerted pressure on the two Android device makers resulting in the termination of those relationships. The Boston-based startup brought a patent infringement action in federal court (District of Massachusetts), claiming that Google used some of its technology regardless, and a competition complaint in state court. As a result of Skyhook's litigation, hundreds of pages of partly astounding revelations about Google's Android-related strategies entered the public record.

Two weeks ago, Skyhook filed a second patent infringement complaint against Google, asserting nine patents. This time around, Skyhook elected to sue in the District of Delaware.

Yesterday Skyhook and Google filed a joint case management statement in their first patent venue, the District of Massachusetts, in response to the court's request for a proposed schedule. The filing says that "the parties [...] had conferred and have an agreed schedule to propose to the Court", and that schedule envisions a 50-hour trial to commence on August 12, 2013. That would be almost three years after Skyhook brought its related complaint. By comparison, you can have two consecutive ITC investigations adjudicated during that time frame (unless there are unusual delays, such as remands), and in the three leading German patent venues (Düsseldorf, Mannheim, Munich) you will typically already have a decision by an appeals court (comparable to a U.S. circuit court) in your hands at that stage. Even some U.S. district courts are considerably faster. For example, Judge Koh's Apple v. Samsung trial took place after less than half of the time to trial of Skyhook's case based on the procedural agreement with Google.

Skyhook will be lucky if its first Google patent trial really does take place next summer. The aforementioned "agreement" is actually fragile. The final section of the Skyhook-Google joint case management statement discusses Skyhook's recent filing in Delaware, and while "Skyhook believes that these patents are not in the same family as the patents in this case and that they cover different subject matter", Google takes the opposite position and, according to the filing, "will be filing a motion to change venue of the Delaware action to this Court or to the Northern District of California, where all of Google's witnesses reside". The second scenario -- a transfer to Silicon Valley -- wouldn't affect the Massachusetts case. But if Google's first choice of a transfer to Massachusetts materializes, there's no doubt in light of Google's claim that the patents have overlaps that it will request consolidation of the two patent infringement cases. And if that post-transfer motion succeeded, a summer 2013 trial date is practically impossible because of all of the work that would have to be done on the nine new patents-in-suit. Also, with a double-digit number of patents-in-suit in a consolidated case, there would be pressure on Skyhook to narrow its case, but it would presumably want the benefit of claim construction and summary judgment decisions before engaging in major winnowing.

It may take months before the Delaware-based court decides on Google's motion to transfer venue, which has yet to be brought.

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Skyhook Wireless files new lawsuit against Google over 9 U.S. geolocation patents

Over the last eight days, Google has seen its subsidiary Motorola Mobility lose a couple of German patent lawsuits (1, 2) because its Android-based ddevices were found to infringe patents held by Apple and Microsoft. A new U.S. lawsuit filed yesterday by Massachusetts-based Skyhook Wireless adds to Google's Android patent worries and also targets the Google Maps service in general.

A few years ago, Skyhook had agreements in place with Samsung and Motorola until Google used the kind of bullying tactics that China's Alibaba also complained about last week, in response to which it brought a competition lawsuit under Massachusetts state law and a federal patent infringement action in the District of Massachusetts in late 2010. In the competition case, 418 pages of discovery material drew a lot of media attention to Google's overall attitude toward the freedom of Android device makers and the openness of the platform. Yesterday Skyhook filed a new patent lawsuit against Google, alleging infringement of nine geolocation-related patents by Android and Google Maps. The new complaint was filed in the District of Delaware and entered the public record today (click on the image to enlarge):

:

These are the nine patents-in-suit:

1. U.S. Patent No. 7,856,234 on a "system and method for estimating positioning error within a WLAN-based positioning system"

2. U.S. Patent No. 8,019,357 on a "system and method for estimating positioning error within a WLAN-based positioning system" (yes, same title as the previous one)

3. U.S. Patent No. 8,022,877 on "systems and methods for using a satellite positioning system to detect moved WLAN access points"

4. U.S. Patent No, 8,154,454 on "systems and methods for using a satellite positioning system to detect moved WLAN access points"

5. U.S. Patent No. 8,223,074 on "systems and methods for using a satellite positioning system to detect moved WLAN access points"

6. U.S. Patent No. 8,242,960 on "systems and methods for using a satellite positioning system to detect moved WLAN access points"

7. U.S. Patent No, 8,229,455 on a "system and method of gathering and caching WLAN packet information to improve position estimates of a WLAN positioning device"

8. U.S. Patent No. 8,054,219 on "systems and methods for determining position using a WLAN-PS estimated position as an initial position in a hybrid positioning system"

9. U.S. Patent No. 7,471,954 on "methods and systems for estimating a user position in a WLAN positioning system based on user assigned access point locations"

The titles of these patents show pretty well what Skyhook's technology is all about: geolocation based on nearby WiFi (WLAN) access points, a technique that has become very popular, one of the reasons for its success being that it also works in buildings in which GPS generally doesn't work.

All of these patents but one (the last one) were issued by the United States Patent and Trademark Office after the earlier lawsuit was filed in the District of Massachusetts.

Like in its earlier patent lawsuit, Skyhook alleges willful infringement, pointing to business negotiations between Google and Skyhook in 2006 and 2007.

Its choice of the District of Delaware for this filing suggests that Skyhook wasn't entirely pleased with how things were going in its home court in the District of Massachusetts. Two of the patents that Skyhook was asserting in that earlier patent case were deemed indefinite by a federal judge in a recent summary judgment motion. But Skyhook's new lawsuit sends out a clear message: invalidating a patent or two won't solve the problem for Google since the company has been issued new geolocation patents all the time since the filing of its first infringement action. It looks it won't be done with Google anytime soon, and has been building a true patent thicket surrounding WiFi-based geolocation technologies.

I wouldn't be surprised to see Google file a motion to transfer this case out of Delaware, but if Google asked HTC, that company has actually been quite happy with the delay that resulted from a sweeping decision to stay various Apple lawsuits. HTC has recently achieved that newer Apple filings brought in the Southern District of Florida and the Eastern District of Virginia were transferred to Delaware.

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Korean search engines Naver and Daum file antitrust complaint over restrictions Google imposes on Android device makers

According to Dow Jones Newswires, NHN Corp. -- the owner of Naver, the market-leading Korean search engine by revenue -- and Daum Communications Corp. (the number two) lodged an antitrust complaint today with South Korea's Fair Trade Commission (FTC) against Google. The two complainants believe Google violates South Korean competition rules by "restricting local mobile service providers and Android smartphone manufacturers from pre-loading some mobile search portals, including the two Korean search portals, on smartphones."

According to the Dow Jones report, a Google spokesperson claimed that "Android is an open platform and carrier partners are free to decide which applications and services to include on their Android phones." But in my opinion it's perfectly clear that Android is not open, and Google's partners are not free to choose applications and services. Today's antitrust complaint in Korea is just the latest indication of many for Android's non-openness. Here are the most important examples (in no particular order):

• I previously reported on Skyhook's two lawsuits against Google. One of them is about Google's restrictive practices. When Motorola and Samsung wanted to ship Skyhook's location-positioning software with their Android devices, Google explained to them that its Android licensing rules don't allow them to do that. Xconomy recently interviewed Skyhook's CEO. The Dow Jones report on today's Korean antitrust complaint also mentions the Skyhook case.

• In its litigation with Google, Oracle told the court about how Google limits the choice of Android device makers.

• The Register's Cade Metz discovered an interesting article in the IEEE's Computing Now magazine, in which two Google engineering directors affirmatively say that Android and Chrome "are both open and closed depending on business needs at any given time."

• Google decided not to publish the source code of Android version 3.0, codenamed Honeycomb, for the time being. Only select device makers are allowed to ship Honeycomb-based products now.

• Yesterday Google held its quarterly earnings call, and as ZDNet's Larry Dignan reports, Google CFO Patrick Pichette told investors that "everybody that uses Chrome is a guaranteed locked-in user for [Google's search engine and other services]." That's also the case with Android. It's practically impossible for the average user to set another default search engine than Google on an Android-based device. Interestingly, Google always argues in antitrust contexts that its competition is just one click away. That claim is debatable for various reasons, but with Android and Chrome there can't even be a debate: it's just wrong in those contexts.

I don't know much about the South Korean market and nothing about South Korean competition law. Therefore I can't say whether today's antitrust complaint is likely to succeed. Also, the Korea Herald reported on this initiative two days ago (when the exact timing of the complaint was not yet known) and mentions that NHN (Naver) and Daum have both been accused by smaller local competitors of engaging in anticompetitive practices.

That said, there can be no doubt that Google controls Android in a way that runs counter to its claims of openness, and that Google's business model is all about lock-in, just like the business models of other dominant companies. It would be naïve to believe otherwise.

In terms of pursuing a lock-in, they aren't better than others. There are two respects in which Google's pursuit of a monopoly is different from that of comparable companies:

• Google disregards other companies' intellectual property rights to an unprecedented extent. This week, the 40th Android-related patent infringement suit was filed (one of the Walker Digital suits accuses Android among other platforms) in only about 14 months.

• Google exploits open source software like no other company ever did in pursuit of a lock-in. There are some hypocrites whose core businesses are also about lock-in but they use open source as a pretext in political debates, such as for demanding royalty-free access to intellectual property. Their core businesses are, however, based on proprietary technologies, while Google develops "open source" software for the purpose of locking users in.

This week a data privacy blogger asked whether Google is "cruising towards a legal meltdown." That metaphor sounds dramatic, but there's no doubt that Google faces a number of problems in connection with intellectual property rights, competition rules, and data privacy.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents.

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Skyhook vs. Google: a defense of open source principles?

The usual justification put forward by companies enforcing patents against others is that they have to protect their rights as innovators. At a formal level that's true, but often it's really about money and sometimes about weakening competitors. The dispute between geolocation company Skyhook and Google might be a rare exception of patents being asserted in defense of fair and open competition.

Paradoxical as it may seem, this patent assertion against Android -- which could in a worst-case scenario require Google to drop its geolocation/geotagging functionality -- almost comes across as a defense of open source principles. If Google didn't compromise the openness of Android through its trademark license agreement with device makers (more on that later), Skyhook might never have started this infringement action. But since Google tried to preclude Skyhook from some major Android-related opportunities through what Skyhook alleges are unfair, arbitrary and ultimately anticompetitive actions, this conflict ended up in court.

In mid September 2010, Skyhook filed a pair of lawsuits against Google: a patent infringement complaint with the US District Court for the District of Massachusetts (a federal court), and a complaint over trade practices with the Superior Court of Massachusetts.

Patent infringement allegations

On Monday, Skyhook filed its preliminary infringement disclosure in the patent case. That's a document providing the latest detail on the patent infringement allegations that were raised in the original complaint. It comes with claim charts (tables that show the allegedly infringed patent claims on one side and a description of the infringing material on the other).

Skyhook wants an injunction and a damage award related to four patents, all of which relate to the idea of determining a geographic location based on nearby Wi-Fi access points (which are previously identified by having a GPS-equipped car traverse a target area. Those patents are relatively new: the applications were filed in 2004 and 2005. Here's a list of the patents-in-suit:

• U.S. Patent No. 7,414,988 on a "server for updating [a] location beacon database"

• U.S. Patent No. 7,433,694 on a "location beacon database"

• U.S. Patent No. 7,474,897 on "continuous data optimization by filtering and positioning systems"

• U.S. Patent No. 7,305,245 on "location-based services that choose location algorithms based on number of detected access points within range of user device"

According to Skyhook's preliminary infringement disclosure, certain claims of each of those patents are infringed by "at least Google Location Services, including, but not limited to, Gears Geolocation API and its implementation in Toolbar, Chrome browser and Mozilla Firefox browser; Client Location Library, and its implementation in Mobile Search with My Location, Google Maps and Google Latitude; and Network Location Provider, and its implementation in the Android Operating System."

Android and the other product and service names hadn't been mentioned in the original complaint. A connection with Android was likely, and now it's certain that this is yet another Android-related lawsuit. But I said before that this one is special because of the fair and open competition context. Skyhook is neither a troll nor a bully. On the contrary, the company wanted to contribute to the Android ecosystem in various ways and apparently started this action to defend itself against alleged bullying by Google.

Skyhook accuses Google of anticompetitive conduct, interference with customer relationships and failure to deliver on its openness promise

The trade-related complaint filed with the state court levels the following accusations against Google:

• "intentional interference with contractual relations"

• "intentional interference with advantageous business relations"

• "violations of Massachusetts law prohibiting unfair and deceptive trade acts"

• "practices stemming from Google's anticompetitive conduct and Google's bad faith, knowing and intentional interference with plaintiff Skyhook's contractual and business relations with Motorola, Inc. and other current and potential customers"

Skyhook claims to have "suffered actual damages that exceeds tens of millions of dollars" because Google stopped competing fairly once it "realized its positioning technology was not competitive". Allegedly, "in direct opposition to its public messaging encouraging open innovation, Google wielded its control over the Android operating system, as well as other Google mobile applications such as Google Maps, to force device manufacturers to use its technology rather than that of Skyhook", forcing them to "terminate contractual obligations with Skyhook" or to discourage them from partnering with Skyhook in the first place.

The quality of Skyhook's service depends on a large number of users whose anonymized data are evaluated to update and expand a location "beacon" database. This lost opportunity is another type of damage Skyhook claims to have suffered from Google's behavior.

The complaint highlights what appears to be a major discrepancy between Google's claims that Android is open and its actual practices when its business interests are concerned. One of the document's headlines puts it like this:

"Google publicly represents Android as open source and pro-innovation, then unfairly uses its exclusive oversight of the platform to force OEMs to use Google Location Service"

Skyhook also alleges the following:

"On information and belief, Google has notified OEMs that they will need to use Google Location Service, either as a condition of the Android OS-OEM contract or as a condition of the Google Apps contract between Google and each OEM. Though Google claims the Android OS is open source, by requiring OEMs to use Google Location Service, an application that is inextricably bundled with the OS level framework, Google is effectively creating a closed system with respect to location positioning. Google's manipulation suggests that the true purpose of Android is, or has become, to ensure that 'no industry player can restrict or control the innovations of any other,' unless it is Google."

That last sentence is a "more equal than others" type of allegation. Skyhook really seems to be angry about the fact that it lost some very significant business as a result of Google's conduct. In the complaint, Skyhook talks at length about its efforts to develop a business partnership with Motorola (for nearly four years) and how Motorola viewed Skyhook's location service as an opportunity for differentiating itself from other Android vendors. Skyhook and Motorola entered into a licensing agreement in late 2009. That relationship was then announced on April 27, 2010, but Skyhook says that "shortly thereafter, Andy Rubin (Google's Vice President of Engineering overseeing development of Android) called [the CEO of Motorola] multiple times to impose a 'stop ship' order on Motorola preventing Motorola from shipping Android wireless devices featuring Skyhook's XPS client software."

Google allegedly made various demands that Motorola and Skyhook didn't meet, so Skyhook lost this business opportunity.

Keep in mind Andy Rubin founded the company that started the Android project and was acquired by Google. On Twitter, he has defined open as a set of commands with which one can download and compile the Android source code into an executable. If Skyhook's allegations prove true, it will be remarkable that such an outspoken advocate of openness as Andy Rubin prevented Motorola from exercising one of the fundamental rights concerning open source software: modifying and/or combining it with other software.

The complaint also talks about an unnamed "Company X, a mobile OEM with substantial global market share int he Android market", which "was committed to rolling out its next line of Android phones preloaded with Skyhook's XPS technology." When Motorola learned about that plan, it asked Google for equal treatment, which means that Google exerted similar pressure on that unnamed other company as it previously did on Motorola. Ultimately, Skyhook says, "Company X was forced to drop [Skyhook] XPS and continued the launch of its Android device with Google Location Service. As a result, Skyhook has lost millions in expected royalties under the Company X Contract."

One of the court documents that entered the public record in recent months provides clues that "Company X" might be Samsung.

Google's dilemma with Android: too much openness spurs fragmentation and impedes monetization

A key instrument that Skyhook claims Google used against it is the Android "Compatibility Definition Document" (CDD). You can find a link to its current version in the left column of this web page.

In Google's own words, "[t]he CDD enumerates the software and hardware requirements of a compatible Android device." If OEMs like Motorola want to use the Android trade mark and offer the Google Apps market, they must comply with that document and pass the Compatibility Test Suite (CTS). The idea is that some but not all customization of Android by OEMs is allowed. Theoretically, most of the Android codebase is available on open source terms (except for some closed-source Google-owned components that are very important) and could be modified. But if OEMs exercise their open source rights beyond what's allowed by Google, they aren't allowed to use the all-important Android trademark. From a commercial point of view, that's pretty much a complete show stopper.

The CDD was also mentioned by Oracle in a recent court filing in its case against Google. I reported on it in a previous blog post. Oracle claimed that if the Android codebase as published on the Internet infringes on its Java-related patents, the court should assume (unless Google proves the opposite) that officially licensed Android devices do so. Google denied this and pointed to the open source nature of Android and the possibility of OEMs making modifications. But Oracle stressed that the alleged infringements were found in parts of the Android codebase that OEMs aren't allowed to modify if they want to retain their license to use the Android trademark.

In the opinion of some people, Google's efforts to make OEMs adhere to a common party line don't go far enough. Fragmentation is a major Android worry (the biggest one of all according to ZDNet's open source blog). I've experienced it myself a few times already when I asked friends with Android phones some technical question and they couldn't help me because they used different devices or even the same one (I have a Samsung Galaxy S) but with different operating software versions.

Google argues it needs to ensure compatibility by defining common rules for all Android OEMs. However, Skyhook apparently believes that Google’s control goes beyond simply ensuring compatibility. Skyhook argues it should be allowed to supply its geolocation solution to companies like Motorola and that Google interfered only because it wants to impose its own offering on OEMs.

Android compatibility is determined by criteria that are partly subjective

Skyhook believes that Google doesn't apply consistent standards to what is and what isn't allowed as an enhancement of Android. In its trade-related complaint, Skyhook highlights that "Google's established practice in determining Android compliance consists two steps".

The first one requires an Android-based device "to be run against the Compatibility Test Suite (CTS), a software-based test platform that objective evaluates whether the device and software are compatible with the published Android specifications."

What Skyhook considers unfair is the second step, "a review of the device and software based on" the CDD, which it calls "an amorphous outline of additional, non-standardized requirements". Skyhook says:

"This entirely subjective review, conducted solely by Google employees with ultimate authority to interpret he scope and meaning of the CDD as they see fit, effectively gives Google the ability to arbitrarily deem any software, feature or function 'non-compatible' with the CDD."

Google defends its right to derive commercial value from its trademarks with the usual rhetoric of right holders, including the often-heard accusation that others simply want a "free ride".

Should Skyhook make headway with its lawsuits against Google, or with at least one of the two cases, then it might be able to force Google to open the Android market for alternative geolocation solutions. That's why I said in the beginning that this is a special case in which patents might have the effect of forcing an "open source" vendor to grant open source freedoms to its ecosystem -- which includes the choice of a geolocation solution (be it closed source or open source software). In that event, the end might justify the means.

If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents.

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