Google Faces Damages Retrial in SimpleAir Patent Case

, The Litigation Daily

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Google Inc. and its lawyers at Kilpatrick Townsend & Stockton wanted a do-over in their patent fight with SimpleAir Inc., an accused patent troll that won a jury verdict against the search giant last month.

Instead, on Monday a federal judge in East Texas not only ruled that Google has to live with the jury's infringement verdict, but also gave SimpleAir a second chance to win more than $125 million from Google in a retrial on damages.

A Marshall, Texas, jury returned a verdict on Jan. 18 that SimpleAir's patents were valid and infringed by technology that Google's Android mobile platform uses to send push notifications from applications to its smartphone users. But, as we reported, the jury left the damages section of the verdict form blank after failing to reach consensus on the amount Google should pay.

Google's lawyers at Kilpatrick Townsend, led by Mitchell Stockwell, argued in posttrial briefing that the results should be scrapped and the judge should order a new trial on both infringement and damages. SimpleAir, they maintained, had presented three distinct infringement theories at trial, each indicating a different measure of damages. Since the verdict form didn't specify which infringement theories the jury accepted, Google argued that a damages-only retrial wouldn't make sense. Google also asserted that the jury improperly reached a compromise verdict since members spent nearly two days deliberating, sent nine notes to the judge and were given an Allen charge.

U.S. District Judge Rodney Gilstrap in Marshall, Texas, rejected Google's bid for a full retrial, instead entering partial judgment for SimpleAir on infringement and validity and setting jury selection for a new trial on damages for March 17.

"Google offers no signs that the jury was compromising between liability and the amount of damages other than their self-serving reading of the jury notes; a reading which the court is convinced is inaccurate and little more than wishful thinking," Gilstrap wrote in Monday's six-page order.

SimpleAir's lawyer, Jeff Eichmann at Dovel & Luner, said he's glad to be heading back before a jury so soon to try the damages case. "That was one of the victories we saw: getting such a quick ruling and us getting back on [Gilstrap's] calendar so quickly," Eichmann said.

Eichmann and cocounsel at Capshaw DeRieux are seeking more than $125 million in damages for SimpleAir, which previously reached confidential settlements with Apple Inc. and other tech companies in related litigation.

Google counsel Stockwell and E. Danielle Thompson Williams at Kilpatrick didn't immediately respond to calls seeking comment.

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