SAN FRANCISCO — It looks as if Google may be seeing more of U.S. District Judge Rodney Gilstrap of the Eastern District of Texas.
Patent consortium Rockstar fired back hard Friday at Google Inc.’s effort to relocate suits against its Android partners to Northern California, and an Oakland federal judge served notice this week that she’s ready to stand down if the U.S. Court of Appeals for the Federal Circuit doesn’t intervene.
Google asked the Federal Circuit last week to move Rockstar’s litigation targeting Samsung Electronics Co., HTC Corp. and other smartphone makers who use Google’s Android software out of Texas and into California, so that Google can “protect its customers” here under a single declaratory judgment action.
McKool Smith partner Theodore Stevenson III answered Friday that those companies aren’t “customers” of Google, so the “customer suit” grounds for jurisdiction don’t apply. “They do not pay Google anything [for Android] and they may modify and use the software as they deem fit,” Stevenson wrote.
Rockstar, a patent holding company owned by Apple Inc., Microsoft Corp., Sony Corp., Ericsson and BlackBerry, is suing over infringing smartphone hardware, such as memory, antennas, transmitters and receivers. The “so-called Android platform,” as Stevenson calls it, isn’t accused of infringing any patent.
Plus Samsung’s U.S. headquarters is based in the Eastern District of Texas, Stevenson argues. Google could have intervened after Rockstar sued the hardware makers in Texas last October. “Instead,” Stevenson wrote, “Google shopped for its own forum and filed suit against Rockstar” in the Northern District of California.
U.S. District Judge Claudia Wilken granted Google’s motion for declaratory judgment jurisdiction in April, saying there was evidence that Apple is using Rockstar to wage a proxy war against Google.
But Gilstrap last month rejected Google’s bid to move Rockstar’s suits out of Texas, saying the Northern District of California is not clearly more convenient and that Wilken’s case may not resolve all the issues between the parties.
Wilken stood by her reasoning in an Aug. 20 order, but added that she’s ready to cede the cases to Gilstrap if the Federal Circuit doesn’t intervene. “In the interests of judicial economy,” she wrote, “if the customer suits were to proceed in Texas, the court would likely transfer this action there.”
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