Fishing: Skyhook Tries to Catch a Big One

In fishing location and timing can be the difference between hooking or not hooking the big one. Skyhook Wireless Inc. may have gotten both location and timing right in the law suits that it filed against Google last week. To begin with, literally nobody does “location” better than Skyhook. Skyhook is a small closely held company that has been the market leader in technology that tracks the location of smartphones by measuring their proximity to Wi-Fi hotspots. However, the “location” that I am referring to in this blog is the filing of the law suits in Massachusetts which is gaining a reputation as being a patent litigation friendly jurisdiction. The small company also appears to have gotten its timing with the suit right because Google is presently under the microscopic lens of government antitrust regulators. Additionally, Skyhook's suits are designed to, or basically in effect, chip away at the notion that Google's Android operating system is open source. 

Skyhook has gone fishing for Google because allegedly Google utilized monopolistic strong arm tactics to force cellphone manufacturer Motorola to use Google Location Service technology rather than Skyhook's XPS technology with cellphones which use the “supposedly” open source themed Android operating system. As a result, the small innovator has filed a lawsuit in the Massachusetts Superior Court alleging anti-competitive behavior and has filed another suit in the United States District Court for the District of Massachusetts. In the lawsuit in the state court, Skyhook says that it was able to secure an agreement to include XPS technology on Motorola wireless devices that use Android, after extensive negotiations, but Google stopped shipments of any XPS equipped phones from Motorola. Google allegedly claimed that XPS technology was not compatible with Android even though earlier testing demonstrates Skyhook's XPS technology to be compatible with Android. In the suit, Skyhook claims that the “big bad” Google behaved in a similar manner with a second phone maker whose name was not disclosed. In the lawsuit in the federal district court, Skyhook claims that Google Inc. has infringed upon four patents located in their intellectual property portfolio. The allegedly infringed patents are U.S. Patents No. 7,414,988; 7,433,694; 7,474,897; and 7,305,245.

Massachusetts is a good venue for the small innovation company to adjudicate the patent infringement claims against Google. The district court in the state in 2009 implemented local rules which have sped up the rate of transition of patent infringement suits to the trial stage of litigation. The rules in Massachusetts allow for a relatively quick disposition of patent infringement claims when compared with most other states, which makes it an ideal venue for established businesses seeking to sue other established businesses. Massachusetts is also becoming an increasingly attractive venue because popular venues like the Eastern District Court of Texas have become overburdened and are dealing with a backlog of cases that increase adjudication times for patent infringement cases in those venues. The one draw back with Massachusetts as a venue is that the jury pool in the state may not be as pro litigant as the jury pool located in Texas and other states. The jury pool in Massachusetts may turn out to be more pro defendant in regards to patent infringement cases.

Yet Skyhook is a company that has a lot of characteristics that differentiate it from many of the companies that typically bring patent infringement suits. Skyhook can draw upon those distinctions to make its case attractive to a jury pool even if the pool may be traditionally pro defendant in regards to patent infringement cases. Rightly or wrongly, at the moment, a lot of controversy surrounds companies that enforce their patent portfolios but do not make efforts to turn their patents into products distributed in the marketplace. This is not the case with Skyhook. The company is a rival with Google and is in fact Google's primary competitor in the location services market. Skyhook has therefore made efforts to bring its innovations into being in the market place. Ultimately the federal lawsuit brought by Skyhook appears to be a strategic move by the company to increase pressure on Google to resolve the dispute between the businesses about the use of XPS technology on the Android operating system.
Google will indeed be under pressure. Not merely because of the nature of the lawsuits, but also because of the timing of the suits. Groups interested in preventing antitrust behavior are presently paying close attention to the business practices of Google. For example, the Attorney General of Texas declared recently that he would be investigating Google to evaluate whether they were manipulating the search results of their search engine in ways that place their competitors at a disadvantage. Google's actions also may stigmatize its Android product as being contrary to “open source”. The big tech company has promoted the operating system as open source but here seems to be an example of Google's exercise of power to restrict a competitor's access to its Android operating system.

That said, despite the sympathy and various other factors that Skyhook may have in its favor, it will be interesting to see how this matter plays out. Google has an impressive record when it comes to not biting the bait or being hooked in patent infringement lawsuits. Yes, Google with its immense resources and deep pockets is one hard fish to catch.