On Friday, I wrote about how lawyers working for Polaris IP (Erich Spangenberg) want to use the discovery process in Polaris IP v. Google to learn more about Google's patent reform efforts. Google asked for a protective order; now Spangenberg's response is available. [PDF via Justia]
What's the relevance? Polaris lawyers want to know "Google’s views and efforts relative to the Accused Instrumentalities being able to use the patented technology of others without providing damages adequate to compensate for the infringement." The "Accused Instrumentalities" are the Google products Spangenberg believes he should be paid a royalty on: Google Search, AdWords, and AdSense.
If I hadn't recently watched a patent trial (almost) in its entirety, I think I'd have a hard time understanding what Polaris might be after. But now I can imagine the deposition clips that a skilled lawyer could get from this: "Do you really expect this jury to believe that Google respects patent rights? Isn't it true that Google doesn't want to pay when it uses other people's intellectual property? Didn't Google spend millions lobbying Congress to get the penalties for using other people's intellectual property reduced?" ... and so on.
Back to the brief... Lawyers for Polaris, aka Bright Response LLC, are looking for Google communications, with congressional staff or others, that would confirm Polaris’ belief that "Google continues to infringe the patent-in-suit in hopes that Congress will change the law, including relating to patent infringement damages." They argue that Google's lobbying efforts are at least relevant to damages, and that Google's First Amendment rights to freedom of association should not exempt the company from all lobbying-related discovery.
"The appropriate way to proceed is for discovery to move forward like it does in every case in which privilege issues may come into play to a greater or lesser degree," say Spangenberg lawyers. If Polaris makes a request for privileged info, Google lawyers can object on a case-by-case basis.
Polaris has also asked Google to produce any communications with the mysterious patent-holding giant Intellectual Ventures regarding "the value of relevant patents—or comparable technology." Polaris has also asked Google for information about its contributions to the Coalition for Patent Fairness, the pro-patent reform group it joined last year; but the CPF isn't mentioned in this most recent brief.
One of the reasons I often hear when asking lawyers why they choose to bring a patent claim in E.D. Texas is the thorough discovery required of defendants. From patent-asserters, I've heard several variations on the phrase, "The judges there don't mess around." Translation: E.D. Tex defendants who complain about discovery tend not to get their way.
Discovery is a very expensive process in patent cases, so being assured of a thorough process that will not be interrupted is a boon for plaintiffs. When defendants manage to get a case thrown out after having discovery stayed or narrowed greatly, as it was in two cases I've written about recently (Encyclopaedia Britannica v Alpine Electronics, et al and Triune Star v Walt Disney), it's a bigger win for them. I sure don't think that will happen here, but it will be interesting to see what Judge Ward rules on discovery.
Polaris is represented by David Pridham, Dan Perez, and Kajeer Yar—all lawyers from Spangenberg's usual team—as well as Jonathan Suder and Michael Cooke from Fort Worth-based Friedman Suder & Cooke. Google is represented by Fenwick & West and Quinn Emanuel. Other defendants in this lawsuit: Yahoo, AOL, and IAC/InterActive Corp.
Polaris IP, LLC v. Google Inc. et al. 07-cv-371, E.D. Texas. Full docket on Justia.
Photo: "Stilbocarpa Polaris on Campbell Island." Flickr / twiddleblat.