IP Law Daily, TOP STORY—E.D. Tex.: Google unable to overturn Cloud Messenger infringement verdict, (Oct 2, 2014)

By Greg Hammond, J.D.

Google Inc. failed to obtain reversal of a unanimous jury verdict, finding that Google’s Cloud Messenger and Cloud to Device Messenger infringed on a technology licensing company’s patent. The federal district court in Marshall, Texas denied Google’s renewed motion for judgment as a matter of law, finding that the jury’s verdict was supported by substantial evidence (SimpleAir, Inc. v. Google Inc., September 30, 2014, Gilstrap, R.).

Background. SimpleAir, Inc., an inventor-owned technology licensing company, filed a patent infringement suit against Google in 2011, alleging that the Internet services company infringed on SimpleAir’s U.S. Patent No. 7,035,914 (‘914 Patent), through Google’s Cloud Messenger (GCM) and Cloud to Device Messenger services. The jury returned a unanimous verdict, finding that the messenger services infringed the ‘914 Patent, and that the asserted claims were not invalid. Google renewed its motion for judgment as a matter of law, requesting that that the court overturn the jury’s verdict and find that: (1) SimpleAir failed to offer sufficient evidence to permit a reasonable finder of fact to determine that Google infringed the asserted claims of the ‘914 Patent; or (2) Google has established that the asserted claims of the ‘914 Patent are obvious, and therefore invalid.

Infringement. According to the court, the ‘914 Patent provides a method for transmitting data to selected remote devices. SimpleAir alleged, and the jury found, that Google infringed the patent by: (1) transmitting data from an information source to a central broadcast server; (2) preprocessing said data at said broadcast server, and parsing said data with parsers corresponding to said central broadcast server; (3) transmitting said data to an information gateway for building data blocks and assigning addresses to said data blocks; (4) transmitting preprocessed data to receivers communicating with said devices; and (5) instantaneously notifying said devices of receipt of said preprocessed data whether said computing devices are online or offline from a data channel associated with each device.

With regard to the first finding, SimpleAir presented three theories of infringement to the jury: two theories describing Google’s “first-party” conduct and one theory involving performance by a third-party. The court determined that there was sufficient evidence for the jury to reach its finding of infringement, because: (1) Google conceded that the first theory was met, and (2) having been silent on the second theory during claim construction, Google waived its right to attack the court’s construction in a post-trial motion, and the jury reasonably chose to accept the plaintiff’s expert’s testimony when deciding the issue in favor of SimpleAir. The third theory was not considered by the court, as the verdict was already supported by substantial evidence of infringement based on SimpleAir’s first two theories.

The second finding was also supported by sufficient evidence, as: (1) the use of the term “parsing” is sufficient to satisfy the claim language; (2) the plaintiff introduced substantial evidence of other types of “preprocessing”; and (3) the term “parsing” does not require the parsing of payload data.

Google also challenged the jury’s third finding, arguing that there was insufficient evidence to support the jury’s verdict with respect to “assigning addresses to said data blocks.” Specifically, Google argued that the plain and ordinary meaning of the claim requires addressing the message to a device, and that the address for Google’s MCS endpoint does not qualify as a destination address. The court rejected this argument, however, finding that the issue was not raised during claim construction, and that the phrase should be given its plain and ordinary meaning. Specifically, the court determined that the ordinary meaning of “address” is not limited to destination addresses, and because the MCS endpoint address is a destination address, SimpleAir introduced sufficient evidence to support the jury’s conclusion.

The fourth finding, that Google infringed on the ‘914 patent by transmitting preprocessed data to receivers communicating with said devices, was also supported by sufficient evidence. The court found that Google’s own expert admitted that Google’s MCS server “initiates the information flow” that causes the receipt of data in an Android phone or tablet, meeting the “transmitting” limitation identified by the jury.

Finally, with regard to the jury’s fifth finding, the court concluded that there was sufficient evidence from which the jury could fairly conclude that Google’s control of the GCM service is so extensive that any actions performed by the end user or android device are attributable to Google.

Invalidity. In Google’s alternative argument, the company asserted that the combination of three pieces of prior art rendered the asserted claims of the ‘914 Patent obvious, and thus invalid. The court disagreed, finding that: (1) SimpleAir produced substantial evidence that the prior art fails to disclose each limitation of the asserted claims; (2) Google failed to demonstrate that it would have been obvious to combine or modify the cited prior art; and (3) the jury could have reasonably concluded that the objective evidence established that the asserted claims were not obvious. Consequently, Google’s renewed motion for judgment as a matter of law was denied.

The case number is 2:11-CV-416-JRG.

Attorneys: Daymon Jeffrey Rambin (Capshaw DeRieux LLP) for SimpleAir, Inc. Alton Absher, III (Kilpatrick Townsend & Stockton LLP NC) for Google Inc.

Companies: SimpleAir, Inc.; Google Inc.

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