Gilstrap Kicks Google Trial To Nov. After Virus Delay Bid

By Dave Simpson
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Law360 (September 16, 2020, 10:19 PM EDT) -- U.S. District Judge Rodney Gilstrap has delayed to Nov. 2 a patent trial against Google LLC scheduled for Oct. 1, declining the search giant's pandemic-focused bid to delay the proceedings two extra months, according to a notice in an associated Federal Circuit appeal Wednesday.

Personalized Media Communications Inc., the plaintiff, opposed Google's bid for a 90-day delay but had told Gilstrap that some of its witnesses would not be available for the Oct. 1 start date. On Monday, Gilstrap therefore modified and granted Google's request, pushing the trial back more than a month.

Google argued in August that the trial presents "unnecessary and severe health and safety risks, during a time when many experts expect a resurgence" of COVID-19.

But the patent holding company responded Monday that the same court had an in-person trial recently involving Apple that passed without incident.

The company told the court that Google's motion to push the trial back by 90 days relied on excuses and roundabout arguments.

"All of this hand-[waving] falls flat, however, considering that this court just conducted a safe trial involving Google's California neighbor, Apple," PMC said Monday. "Apple had to bring its witnesses and lawyers from California. Apple had to confront the same COVID-19 situation as Google."

In that case in August, PanOptis Patent Management LLC persuaded an eight-person jury that Apple willfully infringed five patents, and was awarded $506.2 million in royalties for past sales.

"To the best of counsel's knowledge, the Apple trial was conducted safely and successfully," PMC said.

PMC said that Google presented no valid reasons for a continuance.

"This court is able to conduct trials during the current pandemic, and Google does not deserve an exception to this policy for itself," PMC said.

Later on Monday, Gilstrap pushed the trial back to Nov. 2, with pretrial hearings scheduled for Oct. 19 and 21.

In August, the Patent Trial and Appeal Board used discretionary denial to reject the search engine giant's petitions seeking review of PMC's data processing patents. That the looming October trial would wrap nearly 10 months before its final written decisions would be due weighed heavily in favor of denial, the decisions said.

Google had argued that the board couldn't be so sure the trial would proceed as scheduled because of potential delays from the pandemic and a pending decision from the Federal Circuit in the tech giant's appeal of the district court's refusal to transfer the case to California.

But after analyzing the cases under its precedential decision in Apple v. Fintiv , the board opted to not guess whether either factor would impact the trial date.

"We decline to speculate whether that date will change due to COVID-19 disruptions or a writ of mandamus from the Federal Circuit," one of the decisions said.

PMC sued Google in March 2019, accusing it of infringing several patents linked to adaptive video streaming. It also sued Akamai Technologies Inc. with similar allegations, but that case was dropped in late December.

The patents-in-suit are 7,747,217; 7,769,344; 7,865,920; 8,601,528; 8,739,241; and 9,674,560.

Google is represented by Dan L. Bagatell and Andrew T. Dufresne of Perkins Coie LLP and Charles K. Verhoeven, Carl G. Anderson and David A. Perlson of Quinn Emanuel Urquhart & Sullivan LLP.

PMC is represented by Arun Subramaniam, Tamar Lusztig, Geng Chen, Joseph S. Grinstein, Meng Xi, Rachel S. Black and Floyd Short of Susman Godfrey LLP, S. Calvin Capshaw and Elizabeth L. DeRieux of Capshaw DeRieux LLP, Dmitry Kheyfits of Kheyfits Belenky LLP and Timothy R. DeWitt of 24IP Law Group USA PLLC.

The case is Personalized Media Communications LLC v. Google LLC et al., case number 2:19-cv-00090, in the U.S. District Court for the Eastern District of Texas.

--Editing by Brian Baresch.

For a reprint of this article, please contact reprints@law360.com.

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