Judge: Leonard Davis
Holding: Motion to Sever GRANTED
This patent case involves two defendants, Google and Skyhook (what a shame it isn't Skyfall, so I could load this post with Bond references), who are adverse in other litigation. One defendant, Google, asked for a severance from the rest of the defendants, including defendant Skyhook as a result, and plaintiff opposed. Judge Davis agreed with Google's position:
Google’s position in this lawsuit is distinguishable from an ordinary situation where two competitors are joined as co-defendants. Google and Skyhook are more than competitor co-defendants—they are also adversaries in another lawsuit involving similar technologies and patents as the present suit. Skyhook also has pending patent applications claiming priority to patents asserted against Google in the Massachusetts Suit. This creates a very real threat that Skyhook will (even unintentionally) use confidential information obtained from Google in the Texas Suit during prosecution of its pending applications. There is also a threat that Skyhook will use confidential Google information obtained in the Texas Suit against it in the Massachusetts Suit. This conflict puts Google between Scylla and Charybdis. It must choose between: (A) sharing information with Skyhook to benefit the Texas Suit at the expense of the Massachusetts Suit; or (B) withholding information from Skyhook to benefit the Massachusetts Suit at the expense of the Texas Suit. Google’s untenable position can be mitigated by severance from the remaining Defendants. See F ED. R. C IV. P. 20(b) (stating a court may order separate trials to protect a party from prejudice).
Judge Davis also held that severance was proper under FRCP as interpreted by In re EMC anyway because the case involved different products or methods of infringing in a similar manner.
Notably, Judge Davis did not consolidate the severed case with the other cases for pretrial. "Because of the inherent prejudice to Google resulting from its concurrent lawsuit against Skyhook," he wrote, "the Court will not consolidate Google with the remaining Defendants for pre-trial under Norman IP. See Norman IP Holdings, LLC v. Lexmark Int’l, Inc., 2012 WL 3307942 (E.D. Tex. Aug. 10, 2012) (Davis, J.).