Google's Delay Bid 'Falls Flat' Due To Apple Trial, Gilstrap Told

By Dave Simpson
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Law360 (September 14, 2020, 11:40 PM EDT) -- Google's pandemic-focused bid to delay a patent trial in a suit brought by Personalized Media Communications Inc. in U.S District Judge Rodney Glistrap's court is undermined by the "safe" trial held recently against Apple in the same court, the patent holding company said Monday.

The company told the Eastern District of Texas court that Google's motion to push the October trial back by 90 days relies on excuses and round-about arguments.

"All of this hand-waiving 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, McKool Smith PC- and Irell & Manella LLP-backed PanOptis persuaded an eight-person jury that WilmerHale-backed Apple willfully infringed five patents, to the tune of $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.

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

But PMC said that Google presents 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.

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 due the COVID-19 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 them of infringing several patents linked to adaptive video streaming. Akamai Technologies Inc. was also hit with similar allegations, but the case against it was dropped in late December.

Representatives for the parties did not immediately respond to request for comment Monday.

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.

Personalized Media Communications 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 underlying 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 Emily Kokoll.

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