Sky Tech starts third suit for patent infringement

Marilyn Tennissen Oct. 25, 2007, 7:46am

Stephen Susman

After successfully reaching a settlement with computer giant IBM last year, Sky Technologies is taking on another company alleging infringements on its business software patents.

Sky Technologies LLC, a Massachusetts-based company, filed a patent suit against Procuri Inc. on Oct. 19 in the Marshall Division of the Eastern District of Texas.

Sky claims it owns the rights to three patents relating to business software that facilitates multivariate negotiations among two or more parties. The patents in question are U.S. Patent No. 6,141,653, issued Oct. 31, 2000; U.S. Patent No. 7,149,724 issued Dec. 12, 2006; and U.S. Patent No. 7,162,458 issued Jan. 9, 2007.

Sky alleges that Procuri Inc. infringes the patents by past and continued manufacture, sales and use of products and services without a license.

"Procuri's past and continued infringement, contributory infringement and inducing infringement of Sky's patents has damaged Sky, entitling Sky to no less than a reasonable royalty extending throughout the life of Sky's patents," the original complaint states.

Sky is seeking a permanent injunction to prevent Procuri's continued infringement. In addition, Sky alleges that since at least June 2000, Procuri had knowledge of the '653 Patent and "did not have a sound or good faith basis to believe it had the right to continue its unlicensed use of the infringing software."

Because of Procuri's willful and deliberate misconduct, Sky is seeking enhanced damages, costs, interests, fees and further relief as the court may deem appropriate at law or in equity.

Sky is represented by Stephen Susman of Susman Godfrey LLP in Houston, with assistance from T. John Ward Jr. in Longview. The case has been assigned to U.S. District Judge Leonard E. Davis.

This case is a continuation of prior litigation filed in the Marshall Division of the Eastern District of Texas that was assigned to U.S. District Judge David Folsom.

In December 2003, Sky took on computer mega-company IBM. In that case (No. 2:03-cv-454-DF), Sky and IBM reached a settlement on March 7, 2006.

The suit alleged that IBM infringed the same three patents in question in the Procuri case.

Sky claims that IBM met and corresponded with Sky engineers and personnel several times between December 2000 and August 2001. The meetings were allegedly held because IBM wanted to learn about the software, program concepts and other trade secrets. Sky claimed IBM "represented that it intended to license Sky's software and intellectual property."

But Sky said that "at the last minute, after learning everything it needed, IBM refused to pay Sky for a license and proceeded to develop its own implementation of Sky's software and technologies."

The suit claimed that IBM's WebSphere was developed with Sky's technology.

Sky filed a patent infringement suit against IBM and also charged the company with misappropriation of trade secrets, conversion, unjust enrichment and breach of contract. Sky asked for a trial by jury, a permanent injunction, enhanced damages, costs and attorney fees.

In its answer to the complaint, IBM admitted to the meetings and denied the rest of the allegations. IBM asserted that the three patents were not enforceable and that Sky was not the owner. It also claimed it had met with a predecessor company and not Sky Technologies.

Jeffrey Conklin founded Trade Access Inc. in 1998, which was also known as Ozro Inc. The company was later known as Sky Technologies.

Susman represented Sky in that litigation as well, and negotiated the settlement with Texarkana attorney Damon Young for IBM. Judge Folsom dismissed the case but ruled that each side was to bear its own fees and costs.

Sky is also currently involved in litigation with SAP and Oracle in a patent infringement suit filed Oct. 17, 2006 (No. 2:06-cv-00440-DF).The SAP case also deals with the '653 Patent, as well as U.S. Patent Nos. 6,336,105 and 6,338,050. Sky claims the defendants SAP and Oracle had knowledge that the patents were rightfully assigned to Sky and continued to use unlicensed software.

In that suit, Sky is seeking a permanent injunction, damages no less than reasonable royalty, treble damages, costs, fees, expenses, interest and other relief. The SAP case has also been assigned to Judge Folsom.

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