Jason Atchley : IP Law : Google and Rockstar Spar Over Venue


Google and Rockstar Spar Over Venue


Maria Zilberman, The Recorder

February 17, 2014    |0 Comments

Google campus
Google campus
SAN FRANCISCO — In case it wasn’t already crystal clear that plaintiffs and defendants in patent suits have different ideas about where they want to litigate, another nasty East Texas-Northern California turf fight has broken out, this time between Google Inc. and Rockstar Consortium, the IP firm partly owned by Apple.
The feud started when Rockstar filed a spate of suits in the Eastern District of Texas against gadget-makers who use Google’s Android platform. Mountain View-based Google upped the ante in December with a declaratory judgment action in the Northern District of California.
Now lawyers at Quinn Emanuel Urquhart & Sullivan and McKool Smith are trading blows in a venue fight, each accusing the other of blatant forum-shopping.
“There is only one reasonable place to conduct this litigation: California,” argued Google’s lawyers at Quinn in a Feb. 6 court filing.  
“California is not even an option for this litigation, and Google’s contrary view squarely conflicts with controlling law,” McKool Smith lawyers retorted in a brief filed Feb. 13.
Rockstar wants Google’s suit to be tossed, or at least transferred. Its lawyers contend the California court lacks jurisdiction over Rockstar and its wholly owned subsidiary MobileStar Technologies LLC, which owns or holds an exclusive license to the seven patents at issue. Moreover, Rockstar insists it was the first to file suit and its choice of venue trumps.
“Google’s effort to invoke the Declaratory Judgment Act invites precisely the kind of inefficient, duplicative litigation (and risk of inconsistent results) that the Act will not tolerate,” Rockstar’s lawyers argued.
The so-called first-to-file rule allows a federal court to refuse to hear a case if issues substantially overlap with those raised in an earlier-filed case. Transfer is discretionary.
Meanwhile, Google also claimed that it was the first to file, pointing out that Rockstar amended one of its pending suits in the Eastern District of Texas to include Google roughly a week after Google filed its declaratory judgment action.
“Rockstar admittedly sued Google only after Google brought [the declaratory judgment filing],” the company asserted.
Google is represented by Quinn Emanuel partners Sean Pak, Amy Candido and Matthew Warren. The team also seized on Rockstar’s origins as a patent holding company to support its jurisdictional arguments.
Rockstar was created out of the 2011 bankruptcy of Nortel Networks. Apple, Microsoft, Research in Motion Inc., and other Google competitors paid $4.5 billion to acquire Nortel’s patent portfolio, outbidding Google. Apple contributed approximately $2.6 billion of that sum.
Rockstar transferred thousands of U.S. and foreign patents to its owners and reorganized itself as a patent licensing business that produces no products. It formed MobileStar one day before filing its spate of lawsuits in October.
Google contended that Rockstar’s ties to Nortel, which did business in California, and its links to Apple both give rise to jurisdiction. The Quinn Emanuel lawyers also noted that Google’s Android platform is “designed, developed, tested, and built primarily here in California.”
Rockstar’s team, which includes McKool Smith founder Mike McKool in Dallas and partner Courtland Reichman in Redwood Shores, Calif., took different view. “Google cannot sue Rockstar in California by saying it could have sued Apple or Nortel in California,” Rockstar’s lawyers insisted. “Personal jurisdiction is personal, and Google has not shown Rockstar itself is subject to suit in this Court.”
As for MobileStar, the team wrote: “If Google wishes to hale MobileStar into court, it has to establish jurisdiction using MobileStar’s contacts.”
In its response motion, Google specifically pushed back against Rockstar’s contention that MobileStar cannot be tried in California, calling the argument a “too clever by half assertion of immunity by subsidiary.” It cited Dainippon Screen Manufacturing v. CFMT, a 1998 decision from the U.S. Court of Appeals for the Federal Circuit.
“Rockstar’s argument … would be an awfully neat trick—had the Court of Appeals not already considered and rejected it,” Google stated.
A hearing is scheduled March 13 before U.S. District Judge Claudia Wilken in Oakland.
ALM staff contributed to this report.

Read more: http://www.therecorder.com/id=1202643286165/Google-and-Rockstar-Spar-Over-Venue#ixzz2tnZUeBhX

Posted by at 1:39 PM 



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