There has been a lot of speculation recently regarding the upcoming Vringo ("VRNG") v. Google ("GOOG") patent trial in the Eastern District of Virginia. Authors I respect such as John Ford and James Altucher have both stated that they believe the case will settle before trial. Other far less reputable authors such as the Modernist have speculated that Google may win on summary judgment before trial.
As I explained in the comment section in my previous article debunking the Modernist What The U.S. Supreme Court Really Says About Vringo, and as requested by one of the comments, let me explain why it is highly unlikely that Google will win on summary judgment having nothing to do with the merits of the case, which I believe Messrs. Ford and Altucher have already covered.
The litigation between Vringo and Google is pending in the Federal District Court for the Eastern District of Virginia. The Eastern District of Virginia is known in the legal community as the "rocket docket." Civil litigation pending in this district court proceeds faster than civil litigation in any other district court in the Country. What does this have to do with Google's chances on summary judgment you ask? Everything.
The trial is scheduled to begin on October 16, 2012. Normally a trial start date is not set in stone because many legal issues come up at the last minute and the Court is inclined to grant the parties an extension. The rocket docket is different and the odds of this start date getting moved are fairly low.
As of this writing, it is September 7, 2012. Google has not even submitted its summary judgment motion. After receiving Google's summary judgment motion, pursuant to local rules of the court, Vringo will then have 11 days to respond and Google will have 3 days after that to reply. Even if Google files its summary judgment motion on Monday September 10, 2012, that leaves the Court less than 3 weeks to decide the summary judgment motion prior to the first day of trial.
The Court will simply not have time to write and rule on what will be a complicated and voluminous summary judgment record before the trial is scheduled to start. Either the Court will not rule on the summary judgment motion, or the Court will have to issue a short order basically denying the motion. An order granting summary judgment would take much too long to write as the Court would have to write an opinion it believed could withstand what would be Vringo's inevitable appeal. Courts usually take 3-4 months, sometimes longer to write opinions of this magnitude, but this Court would have to put something together in a matter of weeks, and depending on when Google actual files its summary judgment motion, perhaps only days. Is this possible? Of course, the Judge and his clerks could work around the clock and issue a decision. Is this probable? No.
The February 15, 2012 scheduling order reveals that the Court has already contemplated not deciding the summary judgment motion in advance of trial. The scheduling order states "Disposition of motions for summary judgment is left to the discretion of court, and such motions may or may not be addressed prior to trial." The emphasis is not mine, but that language appears in bold in the Court's scheduling order.
The likelihood of the Court deciding Google's summary judgment motion is therefore slim at best. Google recently requested and was granted an extension of the page limit for its summary judgment papers from 30 to 40 pages. In its request, which was granted by the Court, Google stated "In light of the complex issues involved in the motion, the Defendants have requested and the Plaintiff has agreed to allow Defendants an additional 10 pages in connection with the briefing of its motion for summary judgment. The Plaintiff will also be allowed an additional 10 pages in its opposition." According to local rule, Google will then receive 20 pages for its reply. Therefore, the briefing alone on summary judgment will total 100 pages that address what Google admits are "complex issues." This does not include the thousands of pages of exhibits including deposition testimony and documentary evidence that the parties will submit that would have to form the basis of any decision.
It is simply hard to fathom the District Court issuing a summary judgment decision prior to the October 16, trial date. Therefore, Google is left with only 2 options. Go to trial or settle. Summary judgment appears to be off the table.
Disclosure: I am long VRNG.