Google Inc. v. Rockstar Consortium US LP et al

Filing 31

Declaration of Kristin J. Madigan in Support of 30 Google Inc.'s Opposition to Defendants' Motion to Dismiss or Transfer filed byGoogle Inc.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19 - Part 1 of 3, # 20 Exhibit 19 - Part 2 of 3, # 21 Exhibit 19 - Part 3 of 3, # 22 Exhibit 20, # 23 Exhibit 21 - Part 1 of 2, # 24 Exhibit 21 - Part 2 of 2, # 25 Exhibit 22, # 26 Exhibit 23, # 27 Exhibit 24, # 28 Exhibit 25, # 29 Exhibit 26, # 30 Exhibit 27, # 31 Exhibit 28, # 32 Exhibit 29, # 33 Exhibit 30, # 34 Exhibit 31, # 35 Exhibit 32, # 36 Exhibit 33, # 37 Exhibit 34, # 38 Exhibit 35, # 39 Exhibit 36, # 40 Exhibit 37)(Related document(s) 30 ) (Warren, Matthew) (Filed on 2/7/2014) Modified on 2/10/2014 (cpS, COURT STAFF).

EXHIBIT 24

arst e chnica.co m
http://arstechnica.co m/tech-po licy/2013/10/patent-war-go es-nuclear-micro so ft-apple-o wned-ro ckstar-sues-go o gle/

Patent war goes nuclear: Microsoft, Apple-owned “Rockstar”
sues Google
by Jo e Mullin - Oct 31 2013, 8:10pm PDT

Canada-based telecom Nortel went bankrupt in 2009 and
sold its biggest asset—a portf olio of more than 6,000
patents covering 4G wireless innovations and a range of
technologies—at an auction in 2011.

Ro c ks tar' s re ve rs e -e ng ine e ring lab in O ttawa, Canad a.
Ro c ks tar Co ns o rtium

Google bid f or the patents, but it didn't get them. Instead, the patents went to a group of competitors—
Microsof t, Apple, RIM, Ericsson, and Sony—operating under the name "Rockstar Bidco." T he companies
together bid the shocking sum of $4.5 billion.
Patent insiders knew that the Nortel portf olio was the patent equivalent of a nuclear stockpile: dangerous in
the wrong hands, and a bit scary even if held by a "responsible" party.
T his af ternoon, that stockpile was f inally used f or what pretty much everyone suspected it would be used f or
—launching an all-out patent attack on Google and Android. T he smartphone patent wars have been underway
f or a f ew years now, and the eight lawsuits f iled in f ederal court today by Rockstar Consortium mean that the
conf lict just hit DEFCON 1.

Google probably knew this was coming. When it lost out in the Nortel auction, the company's top lawyer, David
Drummond, complained that the Microsof t-Apple patent alliance was part of a "hostile, organized campaign
against Android." Google's f ailure to get patents in the Nortel auction was seen as one of the driving f actors in
its $12.5 billion purchase of Motorola in 2011.
Rockstar, meanwhile, was pretty unapologetic about embracing the "patent troll" business model. Most trolls,
of course, aren't holding thousands of patents f rom gigantic technology companies. When Rockstar was
prof iled by Wired last year, about 25 of its 32 employees were f ormer Nortel employees.
T he suits f iled today are against Google and seven companies that make Android smartphones: Asustek, HT C,
Huawei, LG Electronics, Pantech, Samsung, and Z T E. T he case was f iled in the Eastern District of Texas, long
considered a district f riendly to patent plaintif f s.

The lawsuits
T he complaint against Google involves six patents, all f rom the same patent "f amily." T hey're all titled
"associative search engine" and list Richard Skillen and Prescott Livermore as inventors. T he patents describe
"an advertisement machine which provides advertisements to a user searching f or desired inf ormation within a
data network."

The smartphone patent wars have been underway for a few years now, and the conflict just hit
DEFCON 1.

T he oldest patent in the case is US Patent No. 6,098,065, with a f iling date of 1997, one year bef ore Google
was f ounded. T he newest patent in the suit was f iled in 2007 and granted in 2011.
T he complaint tries to use the f act that Google bid f or the patents as an extra point against the search giant.
"Google subsequently increased its bid multiple times, ultimately bidding as high as $4.4 billion,"
wrote Rockstar's lawyers. "T hat price was insuf f icient to win the auction, as a group led by the current
shareholders of Rockstar purchased the portf olio f or $4.5 billion. Despite losing in its attempt to acquire the
patents-in-suit at auction, Google has inf ringed and continues to inf ringe the patents-in-suit."
T he suits against the six manuf acturing companies each assert the same patents—either six or seven of
them, depending on the target. T he patents cover a variety of innovations and have dif f erent inventors. One
patent f iled in 1997 f or a "navigation tool f or graphical user interf ace" describes a way of navigating through
electronic documents. Another describes an "Internet protocol f ilter," and a third patent describes an
"integrated message center."
T he manuf acturer lawsuits name the targets' whole array of smartphones and tablets. T he lawsuit against
Huawei, f or instance, claims the inf ringing products include "the Huawei M865 MUVE, Huawei Ascend II, and
Huawei Premia 4G M931, and Huawei’s f amily of tablets, including but not limited to the Huawei MediaPad and
Huawei IDEOS S7 Slim."
Rockstar has employed two dif f erent law f irms to f ile the suits; both f irms have patent experience and
experience litigating in the Eastern District of Texas. T he Google search suit is being handled by Susman
Godf rey, which has taken on other sue-the-world patent cases, like Paul Allen's lawsuits against Facebook,
Google, and others.

T he manuf acturer suits, meanwhile, are being handled by McKool Smith, a f ormidable Texas law f irm that has
probably wrung more massive verdicts out of tech companies than any other f irm. It scored $368 million f rom
Apple f or VirnetX, $290 million f rom Microsof t over i4i's XML patent, and most recently notched a $173 million
verdict against Qualcomm.

The ultimate “patent privateer”
When Wired visited Rockstar's Ontario headquarters, it f ound 10 reverse-engineering experts, working daily to
take apart products and f ind patent inf ringement. With just a f ew dozen employees, Rockstar is hoping to
convince more than 100 technology companies to pay it patent licensing f ees f or a huge array of products.
"Pretty much anyone out there is inf ringing," said Rockstar's CEO, John Veschi.
T he Rockstar Consortium may be the ultimate example of patent "privateering"—when big companies hand of f
their patents to small shell companies to do the dirty work of suing their competitors. Essentially, it's patent
trolling gone corporate.
T he "privateering" phenomenon has long irked Google. In February, when Google f iled a patent lawsuit against
British Telecom, it said one of the reasons f or the suit was that BT had not only sued Google directly, but it
had also gone around "arming patent trolls."
Part of Rockstar's strategy is avoiding a patent countersuit by not having any operating businesses.
Essentially, the company wants to enjoy the same advantage patent trolls have, even though it's owned by
direct Google competitors like Apple and Microsof t.
"T he principals have plausible deniability," said T homas Ewing, an IP attorney who spoke to Wired about
Rockstar. "T hey can say with a straight f ace: ‘T hey’re an independent company. We don’t control them.’ And
there’s some truth to that."
And Rockstar's CEO was quite straightf orward about his belief that whatever promises Microsof t and Apple
might have made about how they'll use their patents, those promises don't apply to Rockstar. “We are
separate,” he says. “T hat does not apply to us.”
Rockstar may want to keep the patent conf lict as a kind of "proxy war" between Google and its competitors.
But Google has plenty of patents, and this new attack seems assured to bring a counterattack.
T he smartphone market is more valuable than ever, and the $4.5 billion Rockstar purchase shows that
Google's competitors will spare no expense to put a damper on Android, and they hope to make money while
they do it. Patents have become the arena in which tech companies have chosen to do battle. Six years af ter
the iPhone and f ive years af ter the launch of Android, the stakes keep getting raised.