Google loses bid to delay Nest patent process over Covid concerns

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Judge Alan Albright will not postpone a patent trial against Google LLC over concerns from the tech company about the spread of the omicron variant of the coronavirus and its impact on Google witnesses.

An in-person jury trial is expected to begin January 31 in Waco, Texas. Google has demanded that the trial, which involves smart home energy patents, be postponed to March 28 because many of its witnesses will not attend the trial in person due to the variant’s rise.

Albright, of the United States District Court for the Western District of Texas, denied Google’s request to continue with an order on Wednesday.

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

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

Infection problems

EcoFactor Inc. sued Google in January 2020, arguing that Google’s Nest thermostat infringes several of its patents. EcoFactor has filed separate lawsuits against EcoBee Inc. and Vivint Inc. which will be tried later this year.

Google said in court that many of its witnesses expressed concern about the risk of infection caused by the more transmissible omicron variant. Six of the nine expected witnesses will not be “available” to testify live at the January 31 trial, he said.

Google has noticed that other processes have recently been postponed. The District of Delaware, for example, pushed the trial in a patent lawsuit against Gilead Sciences Inc. in May after Gilead expressed concern over the spike in Covid-19 cases.

EcoFactor, for its part, stated that it did not consider a postponement justified.

“Luckily, from Google’s presentation it appears that none of its witnesses currently have COVID-19 (nor EcoFactor’s) and EcoFactor appreciates the Court’s willingness to welcome witnesses from a distance if witnesses are unable to go to the upcoming trial. “he wrote in a January 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, WD Tex., No. 20-cv-00075, 1/12/22.

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