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Google Loses Bid to Delay Nest Patent Trial Over Covid Concerns

Jan. 13, 2022, 4:53 PM

Judge Alan Albright won’t postpone a patent trial against Google LLC over the tech company’s concerns about the spread of the omicron variant of the coronavirus and its impact on Google’s witnesses.

An in-person jury trial is scheduled to begin Jan. 31 in Waco, Texas. Google asked the trial, involving smart home energy patents, be pushed to March 28 because several of its witnesses won’t attend the trial in person due to the variant’s surge.

Albright, of the U.S. District Court for the Western District of Texas, denied Google’s request for a continuance in a Wednesday order.

The judge said there was no evidence the variant would die down in eight weeks. He also noted that witnesses can testify remotely and EcoFactor has agreed not to use video testimony against Google during trial.

“Thus, any prejudice against Google is mitigated,” Albright wrote.

Infection Concerns

EcoFactor Inc. sued Google in January 2020, alleging Google’s Nest thermostat infringes various of its patents. EcoFactor has brought separate cases against EcoBee Inc. and Vivint Inc. which are scheduled for trial later this year.

Google said in court filings many of its witnesses expressed concerns about the risk of infection caused by the more transmissible omicron variant. Six of its nine planned witnesses will be “unavailable” to testify live at the Jan. 31 trial, it said.

Google noted other trials have recently been postponed. The District of Delaware, for example, has pushed to May the trial in a patent case against Gilead Sciences Inc. after Gilead expressed concern about the spike in Covid-19 cases.

EcoFactor, for its part, said it didn’t think a postponement was warranted.

“Thankfully, it appears from Google’s submission that none of its witnesses currently have COVID-19 (nor do EcoFactor’s), and EcoFactor appreciates the Court’s willingness to accommodate remote testimony should any witnesses be unable to travel to the upcoming trial,” it wrote in a Jan. 11 filing.

EcoFactor is represented by Russ August & Kabat. Google is represented by Allen & Overy LLP, Keker Van Nest & Peters LLP, and Potter Minton.

The case is EcoFactor, Inc. v. Google LLC, W.D. Tex., No. 20-cv-00075, 1/12/22.

To contact the reporter on this story: Matthew Bultman in New York at mbultman@correspondent.bloomberglaw.com

To contact the editor responsible for this story: Renee Schoof at rschoof@bloombergindustry.com