DCT

1:22-cv-00266

Smartsky Networks LLC v. Gogo Business Aviation LLC

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 1:22-cv-00266, D. Del., 02/21/2023
  • Venue Allegations: Venue is alleged to be proper as both Defendant entities are incorporated in Delaware and therefore reside in the district.
  • Core Dispute: Plaintiff alleges that Defendant’s Gogo 5G air-to-ground network infringes six patents related to technologies for providing in-flight connectivity, including the use of software-defined radio, beamforming, seamless handoffs, and antenna architectures that combine licensed and unlicensed spectrum.
  • Technical Context: The technology domain is in-flight connectivity via air-to-ground (ATG) networks, a critical and competitive market for providing broadband internet access to commercial, business, and general aviation aircraft.
  • Key Procedural History: The complaint notes that on March 12, 2020, Defendant Gogo preemptively filed a petition for Inter Partes Review (IPR) seeking to invalidate the ’947 Patent. On September 16, 2020, the Patent Trial and Appeal Board (PTAB) denied institution of the IPR, finding that Gogo had failed to show a reasonable likelihood of prevailing on its invalidity contentions.

Case Timeline

Date Event
2005-08-18 Priority Date for ’947, ’417, and ’108 Patents
2013-03-15 Priority Date for ’717 and ’639 Patents
2015-01-13 Priority Date for ’077 Patent
2016-04-12 ’947 Patent Issued
2016-09-28 SmartSky announces ATG network using unlicensed spectrum
2016-09-28 Gogo announces intent to use unlicensed spectrum
2017-08-08 ’077 Patent Issued
2019-04-09 ’717 Patent Issued
2020-03-12 Gogo files IPR petition against ’947 Patent
2020-09-16 PTAB denies institution of Gogo's IPR petition
2021-Late SmartSky launches its unlicensed ATG network
2022-01-04 Gogo announces completion of its 5G testbed
2022-01-11 ’417 Patent Issued
2022-Mid Gogo 5G network intended launch
2022-12-20 ’639 Patent Issued
2023-01-17 ’108 Patent Issued
2023-02-21 First Amended and Supplemental Complaint Filed

II. Technology and Patent(s)-in-Suit Analysis

U.S. Patent No. 9,312,947 - “Terrestrial Based High Speed Data Communications Mesh Network”

  • Patent Identification: U.S. Patent No. 9,312,947, entitled “Terrestrial Based High Speed Data Communications Mesh Network,” issued April 12, 2016 (’947 Patent). (Compl. ¶37).

The Invention Explained

  • Problem Addressed: The patent’s background section identifies the shortcomings of existing in-flight connectivity solutions, noting that terrestrial cellular links have impractical range and throughput limitations for aircraft, while satellite-based systems are costly and suffer from their own throughput and latency issues. (Compl. ¶39; ’947 Patent, col. 1:33-42).
  • The Patented Solution: The invention proposes a network of ground-based stations that use software-defined radio (SDR) and beamforming to generate and direct narrow, steerable energy beams toward aircraft. This approach allows for the reuse of the same frequencies for different communication links, minimizes interference, and enables a "stable and manageable system of transitioning between communications links" to maintain a continuous, high-speed connection as an aircraft moves between coverage areas. (Compl. ¶40; ’947 Patent, col. 6:6-24).
  • Technical Importance: The claimed system provided a technological framework for improving the performance and efficiency of ATG networks beyond what was achievable with conventional cellular or satellite technologies. (Compl. ¶40).

Key Claims at a Glance

  • The complaint asserts independent claims 1 and 11. (Compl. ¶65).
  • Claim 1 recites a single network base station comprising:
    • A radio configured via software defined radio to utilize beamforming to generate a plurality of steerable beams.
    • The capability to enable multiple reuses of a same frequency to communicate with different in-flight nodes.
    • The maintenance of a continuous and uninterrupted high-speed data link while an in-flight node transitions between a first steerable beam from the base station and a second steerable beam from another base station.
    • A requirement that the first and second coverage areas are at least partially overlapping.
  • Claim 11 recites a network comprising a plurality of base stations, including at least two with partially overlapping coverage areas, where each station has the capabilities recited in Claim 1.

U.S. Patent No. 11,223,417 - “Terrestrial Based High Speed Data Communications Mesh Network”

  • Patent Identification: U.S. Patent No. 11,223,417, entitled “Terrestrial Based High Speed Data Communications Mesh Network,” issued January 11, 2022 (’417 Patent). (Compl. ¶42).

The Invention Explained

  • Problem Addressed: As part of the same patent family and sharing a specification with the ’947 Patent, the ’417 Patent addresses the same problem of providing cost-effective, high-speed, and continuous data communications to in-flight aircraft. (Compl. ¶44; ’417 Patent, col. 1:37-42).
  • The Patented Solution: The invention describes a ground station that includes an antenna and a software-defined radio. The SDR is configured to perform seamless handovers, utilize beamforming to generate steerable beams, and reuse frequencies. A key feature of the claimed solution is the use of a wireless radio access network protocol that operates specifically in a communication band from about 2 GHz to 6 GHz, which covers the 2.4 GHz unlicensed band commonly used for Wi-Fi. (Compl. ¶45; ’417 Patent, col. 10:39-42).
  • Technical Importance: The technology provides a framework for implementing the beamforming and SDR-based ATG network concepts within frequency ranges that include widely available unlicensed spectrum. (Compl. ¶45).

Key Claims at a Glance

  • The complaint asserts independent claims 1 and 11, as well as several dependent claims. (Compl. ¶82).
  • Claim 1 recites a ground station comprising:
    • An antenna and a software defined radio (SDR).
    • The SDR is configured to conduct a handover to another ground station to maintain a continuous link.
    • The SDR is configured to employ a protocol operating in a communication band from about 2 GHz to about 6 GHz.
    • The ground station is configured for beamforming to generate steerable beams and to reuse a frequency to communicate with multiple aircraft.
  • Claim 11 recites a wireless communication network comprising a plurality of ground stations having the features recited in Claim 1.
  • The complaint explicitly asserts dependent claims 2, 5, 8, 12, 15, and 18, which add limitations related to LTE protocols, providing internet access and streaming video, and using Orthogonal Frequency Division Multiplexing (OFDM). (Compl. ¶¶93-95).

U.S. Patent No. 10,257,717 - “Wedge Shaped Cells In A Wireless Communication System”

  • Patent Identification: U.S. Patent No. 10,257,717, entitled “Wedge Shaped Cells In A Wireless Communication System,” issued April 9, 2019 (’717 Patent). (Compl. ¶46).
  • Technology Synopsis: The patent addresses the problem of providing continuous wireless coverage to aircraft at varying altitudes, which conventional ground-based systems struggle with due to their focus on horizontal coverage. (Compl. ¶48). The patented solution is a network architecture using antennas that create overlapping, "wedge shaped" radiation patterns oriented toward the horizon to progressively build coverage in altitude. The claims require a network that combines base stations employing unlicensed spectrum with adjacent base stations employing licensed spectrum. (Compl. ¶¶49-50).
  • Asserted Claims: Independent claims 1 and 12. (Compl. ¶101).
  • Accused Features: Gogo’s 5G network is accused of infringing by allegedly using multiple base stations with horizon-oriented antenna arrays, combining base stations that employ unlicensed 2.4 GHz spectrum with base stations that employ licensed 850 MHz spectrum, and handing off communication between them. (Compl. ¶¶104-108).

U.S. Patent No. 9,730,077 - “Architecture For Simultaneous Spectrum Usage By Air-To-Ground And Terrestrial Networks”

  • Patent Identification: U.S. Patent No. 9,730,077, entitled “Architecture For Simultaneous Spectrum Usage By Air-To-Ground And Terrestrial Networks,” issued August 8, 2017 (’077 Patent). (Compl. ¶51).
  • Technology Synopsis: The patent addresses the problem of radio frequency (RF) spectrum scarcity and cost for ATG networks. (Compl. ¶53). The solution is an architecture with interference mitigation techniques allowing an ATG network and a terrestrial network to reuse the same RF spectrum. This is achieved by creating a high-altitude "ATG communication layer" with horizon-focused beams, separate from the "ground communication layer" used by terrestrial devices. (Compl. ¶54). The complaint includes a reproduction of Figure 2 from the patent, which illustrates these overlapping, wedge-shaped cells that form the ATG communication layer. (Compl. p. 22).
  • Asserted Claims: Independent claim 1 and dependent claim 2. (Compl. ¶120).
  • Accused Features: Gogo's 5G network is accused of infringing by establishing an ATG communication layer above 10,000 feet that uses the same 2.4 GHz spectrum as terrestrial base stations (e.g., Wi-Fi, Gogo's Cloudport product) that operate in a ground communication layer below that altitude. (Compl. ¶¶126-130).

U.S. Patent No. 11,558,108 - “Terrestrial Based High Speed Data Communications Mesh Network”

  • Patent Identification: U.S. Patent No. 11,558,108, entitled “Terrestrial Based High Speed Data Communications Mesh Network,” issued January 17, 2023 (’108 Patent). (Compl. ¶56).
  • Technology Synopsis: Belonging to the same family as the ’947 and ’417 patents, this patent is directed to providing high-speed data to in-flight aircraft. (Compl. ¶58). The claimed solution is a ground station using an SDR to control an antenna assembly to form "electronically adaptable and narrow beams having a beamwidth of less than about 10 degrees" to track aircraft, operating in the 2-6 GHz range using OFDM. (Compl. ¶59).
  • Asserted Claims: Independent claims 1 and 11, and dependent claim 12. (Compl. ¶140).
  • Accused Features: Gogo's 5G base stations are accused of infringing by using SDR and 16-antenna arrays to generate electronically adaptable beams with a beamwidth of slightly less than 10 degrees to track aircraft, while operating in the 2.4 GHz band with OFDM and conducting handoffs. (Compl. ¶¶142-143).

U.S. Patent No. 11,533,639 - “Wedge Shaped Cells In A Wireless Communication System”

  • Patent Identification: U.S. Patent No. 11,533,639, entitled “Wedge Shaped Cells In A Wireless Communication System,” issued December 20, 2022 (’639 Patent). (Compl. ¶60).
  • Technology Synopsis: As part of the ’717 patent family, this patent also addresses providing continuous wireless communication to aircraft at various altitudes. (Compl. ¶62). The solution involves a base station with antennas defining a directional radiation pattern that overlaps with that of an adjacent base station to create coverage up to a predetermined altitude, where the base station uses unlicensed spectrum and the adjacent base station uses licensed spectrum. (Compl. ¶63).
  • Asserted Claims: Independent claims 1 and 11. (Compl. ¶155).
  • Accused Features: Gogo’s 5G network is accused of infringing by using base stations that employ unlicensed 2.4 GHz spectrum adjacent to base stations that employ licensed 850 MHz spectrum, with overlapping, horizon-oriented radiation patterns that provide coverage up to at least 35,000 feet. (Compl. ¶¶158-159).

III. The Accused Instrumentality

Product Identification

The accused instrumentality is Defendant's "Gogo 5G" network, including its network of base stations (towers) and required on-aircraft components like the Gogo Avance L5 system ("the Accused System"). (Compl. ¶65).

Functionality and Market Context

The complaint alleges the Gogo 5G network is a next-generation air-to-ground system that operates using a combination of technologies. The complaint includes a figure from Gogo's public documentation showing how the Gogo 5G network is designed to augment its licensed 3G/4G 850MHz service with 5G service in the unlicensed 2.4GHz band. (Compl. p. 27). Key alleged functionalities include the use of software-defined radios, beamforming with phased-array antennas to generate and steer multiple beams, and the reuse of frequencies to serve multiple aircraft simultaneously. (Compl. ¶¶69-70). The system is also alleged to conduct seamless handoffs between ground stations that have overlapping coverage areas to provide continuous connectivity. (Compl. ¶72). On the aircraft, the system uses components such as a 13-inch, blade-style multiband phased array antenna mounted on the belly of the aircraft. (Compl. ¶108, p. 40). Gogo and SmartSky are positioned in the complaint as the only two ATG network providers in the United States, making the Gogo 5G network a direct competitor to SmartSky's offerings. (Compl. ¶34).

IV. Analysis of Infringement Allegations

’947 Patent Infringement Allegations

Claim Element (from Independent Claim 1) Alleged Infringing Functionality Complaint Citation Patent Citation
a network base station within a network including at least one in-flight communication node The Accused System uses Gogo's existing tower infrastructure, which includes multiple base stations within a network that includes in-flight aircraft. ¶67 col. 10:2-3
a radio configured via software defined radio to utilize beamforming to generate a plurality of steerable beams, to enable multiple reuses of a same frequency... Gogo 5G base stations allegedly include a "software defined radio" and use beamforming with a phased array to steer multiple beams simultaneously to different aircraft using the same bandwidth and spectrum. ¶¶68-69 col. 10:5-9
...high speed data communication links that are enabled to be maintained continuous and uninterrupted in time while one of the in-flight nodes transitions between a first steerable beam...and a second steerable beam... The Gogo 5G network is alleged to conduct handoffs between different base stations with overlapping coverage areas to provide "uninterrupted connectivity." ¶72 col. 10:10-18
...the first and second coverage areas are at least partially overlapping. Gogo's network allegedly uses base stations with overlapping coverage areas to facilitate handoffs without interrupting the connection. ¶72 col. 10:18-19

’417 Patent Infringement Allegations

Claim Element (from Independent Claim 1) Alleged Infringing Functionality Complaint Citation Patent Citation
A ground station among a network of ground stations configured to provide a wirelessly transmitted high speed data communication link to a receiver station on an in-flight aircraft. The Gogo 5G network includes a network of towers ("ground stations") configured to provide a wireless high-speed data link to aircraft. ¶84 col. 10:28-31
an antenna and a software defined radio operably coupled to the antenna...[to] conduct a handover...to maintain the high-speed data communication link continuous and uninterrupted... Gogo 5G base stations allegedly include 16-antenna arrays and a software defined radio, and are configured to conduct handoffs between stations. ¶85 col. 10:32-38
the software defined radio is configured to employ a wireless radio access network protocol operating in a communication band from about 2 GHz to about 6 GHz. The Gogo 5G network allegedly utilizes an SDR and a protocol operating in the unlicensed 2.4 GHz band, which falls within the claimed range. ¶86 col. 10:39-42
the ground station is configured to utilize beamforming to generate one or more steerable beams...and to reuse a same frequency... The Gogo 5G network allegedly uses beamforming and a phased array to steer multiple beams to communicate with multiple aircraft using the same bandwidth without interference. ¶87 col. 10:43-48
  • Identified Points of Contention:
    • Scope Questions: A central question may be whether Gogo's system, described as using "software running on a server" (Compl. ¶69), meets the patent's definition of a "software defined radio." The construction of this term could be outcome-determinative, as it appears in the independent claims of multiple asserted patents.
    • Technical Questions: The complaint alleges that Gogo's handoffs maintain a continuous link as an aircraft transitions between "steerable beams" from different base stations (Compl. ¶72). A key factual question will be what evidence demonstrates that the handoff mechanism in the Accused System operates on the level of individual steerable beams, as required by the ’947 Patent, rather than simply between broader cell coverage areas.

V. Key Claim Terms for Construction

  • The Term: "software defined radio"

  • Context and Importance: This term is a cornerstone of the asserted claims in the ’947, ’417, and ’108 patents. Its construction is critical because the infringement case hinges on whether Gogo's accused 5G network architecture, which allegedly "replaces hardware components using software running on a server" (Compl. ¶69), falls within the scope of this term as understood in the patents.

  • Intrinsic Evidence for Interpretation:

    • Evidence for a Broader Interpretation: The specification describes SDR as a means to implement radio components using software instead of hardware, which "lowers cost and simplifies updates and other modifications" (’947 Patent, col. 2:25-29, as incorporated by reference in Compl. ¶26). This general, functional description may support a broad construction covering various software-based radio implementations.
    • Evidence for a Narrower Interpretation: The specification ties the use of SDR to specific advantages, such as enabling a "more stable and manageable system of transitioning between communications links among moving nodes" and establishing links with "a more distant node rather than the closest node" (’947 Patent, col. 6:18-24). A party could argue that for a system to contain a "software defined radio" as claimed, it must be configured to achieve these specific, articulated benefits.

  • The Term: "wedge shaped" (cells/radiation pattern)

  • Context and Importance: This term is central to the asserted claims of the ’717 and ’639 patents. The infringement allegation rests on the theory that Gogo's horizon-oriented base station antennas create a radiation pattern that meets this definition. Practitioners may focus on this term because its construction will determine whether Gogo's antenna deployment strategy infringes.

  • Intrinsic Evidence for Interpretation:

    • Evidence for a Broader Interpretation: The patent describes the wedge shape as a "radiation pattern defined between two elevation angles resulting in an increasing vertical beam width and smaller azimuth" (’717 Patent, Abstract; col. 2:4-7). This functional definition based on increasing vertical beam width with distance could be argued to cover any horizon-focused system that exhibits this characteristic.
    • Evidence for a Narrower Interpretation: The patent’s figures and detailed description illustrate a specific geometry where multiple wedge-shaped sectors "progressively build in altitude" through overlap to provide "continuous coverage at high altitudes" (’717 Patent, col. 2:7-9). A party could argue that the term requires this specific overlapping and altitude-building structure, not just any pattern that is wider at a distance. The complaint includes a photograph of a Gogo tower with multiple antenna array panels oriented toward the horizon, which Plaintiff will likely argue creates such a pattern. (Compl. p. 38).

VI. Other Allegations

  • Indirect Infringement: The complaint does not contain separate counts for indirect infringement.
  • Willful Infringement: The complaint alleges willful infringement based on Defendant's pre-suit knowledge of the patents. The basis for this knowledge includes Defendant's prior, unsuccessful IPR petition filed against the ’947 Patent in March 2020 (Compl. ¶32, ¶66), and a public statement by Defendant's CEO on an August 2021 earnings call that Gogo's "attorneys and engineers have reviewed all 144 of [SmartSky's] United States patents in detail" (Compl. ¶34).

VII. Analyst’s Conclusion: Key Questions for the Case

  • A core issue will be one of technical equivalence: What level of evidence will be required to demonstrate that the functionality of Gogo’s 5G network—particularly its use of software on servers, its specific beamforming algorithms, and its handoff mechanisms—is the same as, and not merely functionally similar to, the specific technical limitations recited in the asserted claims?
  • A key legal question will be one of definitional scope: Can the term "software defined radio," as used in the patents, be broadly construed to cover any system where software performs radio functions previously done in hardware, or will it be limited to the specific, more manageable, and longer-range link-transitioning systems described in the specification?
  • A central question for damages will be one of willfulness: Given the allegations of Gogo's prior IPR challenge against the ’947 patent and its CEO's public statement about reviewing Plaintiff's entire patent portfolio, the court will need to determine whether Gogo's alleged infringement after acquiring this knowledge was objectively reckless, which could lead to an award of enhanced damages.