Google, Sonos Slammed for Typifying ‘Worst’ of Patent Litigation

Alphabet Inc.’s Google and Sonos Inc. again drew a federal judge’s ire in a closely watched California case over smart-speaker technologies, as he labeled their competing bids to shed parts of expert reports “emblematic of the worst of patent litigation.”

“On these motions alone,” Judge William Alsup wrote in an opinion issued Wednesday in the US District Court for the Northern District of California, “counsel submitted 135 pages of briefing, 1,130 pages of unsealed exhibits, and 3,756 pages of conditionally sealed exhibits and accoutrements—all to strike, in the end, fewer than five paragraphs from two expert reports.”

“Alas, much ink was spilled for little purpose,” he said. “It appears counsel moved to strike not out of prejudice but to secure an advantage for summary judgment and trial, emblematic of the worst of patent litigation.”

With a 10-day jury trial set to start May 8 in San Francisco, the episode is just the latest in what has become an especially acrimonious dispute that’s ranged across federal districts and international borders.

Alsup partially granted Sonos’ request, striking part of one paragraph from one Google expert’s report on the invalidity and non-infringement of Sonos’ US Patent No. 10,779,033; and four paragraphs from another Google expert’s report on US Patent Nos. 10,848,885 and 10,469,966.

Sonos’ ’885 patent is related to controlling audio speakers in several rooms at once. Last July, Alsup deemed it infringed by “Cast-enabled apps” including Google Home, Google Play Music, and YouTube Music. It’s often referred to as the multi-zone management patent. Bloomberg Law estimates it will expire in September 2027.

In mid-January, Alsup granted Sonos’ request to expand its infringement arguments as to the ’033 patent to add new information supporting its “stream transfer” theory gleaned while deposing a Google witness.

Earlier in the same week, Google asked Alsup to reconsider his Oct. 18 order that upheld the validity of the multi-zone management patent. On March 2, Alsup granted Google’s request. The parties addressed the issue anew during a March 30 hearing on a range of motions, but the judge hasn’t yet issued a fresh decision on the infringed patent’s validity.

Bevy of Failures

In its motion to strike, Sonos argued that Google had improperly introduced new invalidity theories, non-infringement theories, and non-infringing alternatives in its experts’ reports. Google countered that it was Sonos that had improperly introduced new validity and infringement theories in its own reports.

Google failed to sway the judge with any of its arguments; he denied its motion in its entirety.

Alsup rejected Sonos’ request to strike material related to the “Magic Playlist” feature of a pre-existing smart speaker system system, which Google argues anticipated the first claim of the ’033 patent, rendering it invalid. He also rejected Sonos’ bid to strike material related to the YouTube Remote system’s “automatic playback” of lists of videos, which the same Google expert said anticipated the same patent claim.

Turning to Sonos’ contention that Google improperly relied upon several undisclosed Bose products as prior art in another expert’s reports, Alsup said he “acknowledges that Sonos makes colorable arguments, but Sonos should have made them roughly nine months ago.” He echoed Google’s observation that “Sonos seems to have sat on its hands waiting to strike expert report language, just like it did during the patent showdown.”

“Like the order on Sonos’s prior motion to strike, this order will not reward Sonos’s delay tactics, particularly when it is clear that Sonos was not actually prejudiced,” Alsup said. Since “any non-disclosure was harmless,” he opted not to kill material related to the Bose products.

The judge also found that none of the Google experts’ “purportedly new” non-infringement theories “are, in fact, new theories.”

‘Enormous’ Legal Bills

It’s not the first time Alsup has ripped the parties for their handling of the broader dispute.

He used similar language in November 2020, when he stayed the case pending another federal judge’s ruling on Google’s bid to transfer Sonos’ Texas lawsuit to the same San Francisco district court. (That judge denied the motion, but the Federal Circuit tossed the ruling and in September 2021 ordered the case be moved to California.)

“This action and the accompanying international campaign are emblematic of the worst aspects of patent litigation,” Alsup said in that order. He rattled off a list of seven venues—foreign and domestic—in which the parties had filed eight suits over a nine-month span.

“The resources invested into this dispute already are doubtless enormous,” he said at the time. “By the end, our parties’ legal bills will likely have been able to build dozens of schools, pay all the teachers, and provide hot lunches to the children.”

Sonos is represented by Lee Sullivan Shea & Smith LLP and Orrick Herrington & Sutcliffe LLP. Google is represented by Quinn Emanuel Urquhart & Sullivan LLP.

The case is Sonos Inc. v. Google LLC, N.D. Cal., No. 3:20-cv-6754, opinion issued 4/12/23.