Photo illustration: Jason Doiy/ALM

The original version of this report was published in the weekly IP briefing Skilled in the Art.

International Business Machines Corp. hasn't gotten very far yet in its patent litigation against Zillow Inc. Ten months after Big Blue asserted seven patents covering a variety of technologies, the primary development is that U.S. District Judge Josephine Staton of Southern California transferred the case to the Western District of Washington. Though not before U.S. Magistrate Judge John Early scolded IBM for its "'Ready—Fire—Aim' approach to discovery."

In Seattle, Zillow has complained to U.S. District Judge Thomas Zilly that IBM has submitted 25 infringement contention charts, several of them exceeding 200 pages. IBM says that's on Zillow—without more meaningful discovery, it can't be more specific. Zilly has raised the possibility of bifurcating discovery, claim construction, motion practice, or trial between Zillow's consumer and business products, or between liability and damages, all with the goal of simplifying the case. Zillow thinks that's a great idea, and has proposed having a "Section 101 day" to get things started.

But IBM, which it should be noted won an $83 million verdict against Groupon Inc. based in part on two of the same patents, has decided it's time for more patent assertion, not less.

On Wednesday it filed a brand-new infringement suit against Zillow, asserting five more patents. They cover "a novel iconic GUI," methods for using contextual information to rank search results, and methods for the stacking of portlets in portal pages.

"This lawsuit is the result of Zillow's decision to escalate its behavior by willfully infringing five additional patents," IBM, represented by Desmarais and Harrigan Leyh Farmer & Thomsen, alleges in the suit.

The company says it provided detailed evidence of the infringement to Zillow in writing last fall, but Zillow dismissed it out of hand as a "distraction" from the first lawsuit.

During a virtual status conference Thursday, Zilly said he was "quite surprised, even a little shocked," that IBM would file the new suit, without advance notice, while the lawyers were in the midst of trying to make the first case more manageable.

Desmarais partner Karim Oussayef said the new suit is "really meant as a placeholder" to ensure that the additional patents don't expire, and that IBM wouldn't object to staying it while the first case gets hashed out.

"I'm all for staying the new case at some point," Zilly said, "but it seems to me you need to put your cards on the table first" with regard to infringement contentions.

Oussayef said IBM laid out its infringement theories in detail in its 35-page complaint. He stressed that IBM needs Zillow source code or technical documents to narrow its contentions, but that Zillow has unreasonably insisted that IBM first do the narrowing.

Susman Godfrey partner Ian Crosby and associate Katherine Peaslee argued for Zillow that it would have to provide its "entire code base" to meet IBM's production demands. They said Zillow should not have to provide any source code in the first suit until IBM files infringement contentions in the second, a position Zilly said "seems to have some merit."

Zilly said he understands the "chicken and egg" nature of the discovery standoff, but added that the problem seems partly "IBM's doing, because you waited until yesterday to file the new case with five new patents. And presumably IBM has a boatload of patents. We could play this out again in six months or a year with you filing another case against Zillow."

Oussayef assured Zilly that if the parties can deal with the first case expeditiously, "that will drive potential resolution, one way or another."

Zilly ordered each side to file 10-page briefs on discovery and whether IBM should be required to file additional infringement contentions.

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