A legal battle to put to rest allegations that Realtor.com and other real estate websites infringed on now-expired patents could be headed for a jury trial next year, after court-ordered mediation failed to resolve the 6-year-old dispute.
Real Estate Alliance Ltd. (REAL) claims Realtor.com operator Move Inc. and dozens of other real estate companies, brokers and agents violated its mapping technology patents.
REAL, which sold licenses for its mapping technology to a number of real estate brokerages before the patents expired in 2006 and 2008, sued Pennsylvania Realtor Diane Sarkisian in 2005, claiming she had violated them.
When REAL attempted to expand the lawsuit into a class-action suit, Move, the National Association of Realtors (NAR), and the National Association of Home Builders (NAHB) responded by filing a lawsuit against REAL in U.S. District Court for the Central District of California.
REAL filed a counterclaim seeking triple damages against Move, NAR, NAHB and more than two dozen companies that employ map-based search, including multiple listing services, real estate brokerages and franchisors, and homebuilders.
REAL’s motion to obtain class-action standing in the Sarkisian case was denied, and the case was stayed pending the outcome of Move’s lawsuit against REAL. Move and other plaintiffs in the case against REAL won another victory in November 2009, when the district court narrowed the scope of several claims asserted by REAL in one of its patents.
But the Federal Circuit Court of Appeals ruled in March 2011 that the district court erred in its interpretation, and overturned a ruling that Move had not infringed on U.S. Patent No. 5,032,989.
With the case headed for trial in November, Move sought court-ordered mediation. Attorneys for Move also requested that a trial date be postponed until a final decision is reached in another ongoing patent infringement case, Akamai Technologies Inc. v. Limelight Networks Inc.
Attorneys for Move said the decision in the Akamai case "may have a significant affect" on their claim that in the event that REAL’s patent was infringed upon, it was Realtor.com’s users — not Realtor.com itself — that did the infringing.
Attorneys for REAL objected, saying Move’s "divided infringement" argument has already been shot down by the Court of Appeals. Waiting for a decision in the Akamai case, they said, would result in an "undue and indefinite delay" if that case ends up going to the Supreme Court.
"Move originally argued that the claim element of ‘selecting’ must be performed by a person, the end user logging onto the Move zoom-enabled mapping website, and that this element cannot be performed by a computer," attorneys for REAL said, and also stated that the "Federal Circuit explicitly ruled that ‘a user or a computer may select an area.’ "
U.S. District Court Judge George King ordered Move and REAL to attend a private mediation session and rejected Move’s request to postpone motions for summary judgement and a trial date until after the Akamai case is decided.
A mediation session was conducted on June 29 by Roy Hofer, an attorney described in court documents as having "more than 45 years of litigation experience, including significant experience in patent, trade secret, trade dress and related antitrust litigation."
The mediation went forward until Hofer declared an impasse, attorneys for REAL and Move reported last month.
"No further sessions have been requested by either party or the mediator," attorneys for REAL said. "REAL believes that the single factor most likely to further settlement discussions between the parties and lead to a resolution of this dispute is the setting of a trial date at the earliest possible date available on the court’s calendar in 2012."
Move now has until Oct. 18 to file a motion for summary judgment to have the case thrown out based on the "divided infringement" or other arguments.
