Some of the selloff during the past week prompted us to do some more digging in this case, but we were perhaps more motivated because the dates in the last judge’s order seemed not to entirely add up given a Markman in just a few weeks. We reexamined the full docket and pulled up an entry simply titled “order” which was filed in mid-June. Most of these orders give some sense of what the order relates to in the filing title. Like many, we picked up the recent activity related to extended times to file and followed from there after what has been a pretty dull docket for some time. The “order,” was in fact a scheduling update that pushed the Markman in this case back to February 11, 2014. We feel a bit foolish for not catching this sooner and apologize that we didn’t. This is one of the reasons we don’t try to follow all of these patent cases (the bigger reason is that all cases, and patent portfolios, are obviously not equal). We do note that this scheduling change was not announced by either of the parties to the suit which itself is a bit strange.
It turns out that the sides jointly motioned for this change. One can make up several stories as to why Living Social would be motivated to agree with this. For starters, it moves the hearing back almost six months so perhaps as the defendant delay is good. Also too, Living Social will have an opportunity to see how Groupon and the other individual defendants do at their joint Markman hearing against Blue Calypso on November 7th. On the other hand the reason for the move is because Blue Calypso is asserting more patents in the suit which would appear to be a disadvantage for Living Social (and one could fairly ask whether the original patents in suit were strong enough for Blue Calypso to prevail). Also, by moving into the number two spot so to speak, Living Social may unwittingly relinquish some of the strategic imperative of controlling its own destiny in relation to these patents.
There is yet another way to think of this and that is that these sides are cooperating with one another in the interest of reaching an amicable conclusion via a settlement and licensing deal. We still think it is highly unusual that both sides missed dates which were ordered relative to key filings pointing to where, specifically, the Living Social technology infringes Blue Calypso’s patents as well as the response to the Amended Complaint from Living Social. Very soon after we first pointed that out we saw the first settlement with Mylikes. We won’t be surprised to see others prior to this hearing, or for that matter prior to the Groupon, IZEA, Foursquare and Yelp Markman, in early November. We have written previously about the strategic reasons that one or more of these companies would not want to be at the mercy of a strong competitor and invite you to review those.
Finally, and to be clear, we do speculate that there may be an eye toward something else other than litigating these patents on the part of Blue Calypso and Living Social. This discovery does nothing to dissuade us in that opinion and in fact does quite the opposite. We can guarantee nothing of course and people need to do their own due diligence. Time will tell.