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Google Fails to Beat Netlist Suit Over Memory Server Patents (1) – Bloomberg Law

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By Matthew Bultman
Netlist Inc. can pursue allegations that Google Inc. memory servers infringe its patented memory module technology, a California federal judge ruled, sending Netlist shares soaring.
Google argued its allegedly infringing memory servers are insulated from infringement claims after Netlist amended parts of the patent during proceedings at the U.S. patent office. Judge Richard Seeborg of the U.S. District Court for the Northern District of California said one of the patent’s claims isn’t subject to that defense.
The ruling jump-starts a case that dates to 2009. Google said in previous court filings that if Netlist were allowed to pursue infringement of that patent claim, the patent office proceedings “will be rendered meaningless,” and the case will start over with respect to that patent claim.
Netlist shares rose 31% after the ruling. A Google spokesperson declined to comment.
Google asked the patent office in 2010 to reexamine Netlist’s patent. The subsequent proceedings lasted more than a decade, during which Netlist canceled or amended a number of the patent’s claims. It also added dozens of new claims.
After returning to district court in 2021, Netlist amended its infringement contentions.
Google argued it was protected under the “intervening rights” doctrine, which can shield companies from allegations their products infringe patent claims that were added or amended during the reexamination proceedings.
Seeborg found Google had intervening rights for most of Netlist’s patent claims. But there was one Seeborg said wasn’t “amended,” as that term is used in the context of patent prosecution.
While the claim is “technically labeled ‘amended’ in the reexamination certification,” Seeborg said the patent office determined it was “patentable as originally issued.”
The law doesn’t “permit the invocation of intervening rights ‘against claims that the PTO confirmed on reexamination to be patentable as originally issued,’” he wrote.
Seeborg also rejected Google’s argument that Netlist shouldn’t be allowed to allege infringement of the patent claim now, when the claim wasn’t part of the original suit. Seeborg said Netlist couldn’t have sued over the claim in 2009 because the newer, allegedly infringing products came out later.
“The facts of this case therefore do not support a finding that Netlist is engaged in gamesmanship,” Seeborg wrote.
Irell & Manella LLP represents Netlist. Quinn Emanuel Urquhart & Sullivan LLP represents Google.
The case is Netlist Inc. v. Google LLC, N.D. Cal., No. 09-CV-05718, 5/5/22.
To contact the reporter on this story: Matthew Bultman in New York at mbultman@correspondent.bloomberglaw.com
To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com
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She has been writing columns on consumer gadgets for over 2 years now. Her areas of interest include smartphones, tablets, mobile operating systems and apps. She holds an M.C.S. degree from Texas A&M University.