SmartSky Patent Lawsuit Information

Background: SmartSky V. Gogo (C.A. No. 22-266-GBW)

In 2021, SmartSky launched the most advanced air-to-ground (ATG) inflight internet and connectivity solution ever offered to business jets. The new system was based on patented technology developed over many years that used narrow “beamforming” technology to send signals through the unlicensed radio frequency spectrum to aircraft. The high data rates and low latency allowed passengers to have an inflight experience much like they do on the ground. Multiple users could stream video, hold conference calls and browse the internet simultaneously while in flight, anywhere in the country.

After SmartSky’s launch, Gogo Business Aviation was facing a viable competitor in the marketplace for the first time in its history. The company had relied on expensive licenses from the federal government to prevent others from entering the marketplace. Despite repeatedly renouncing the unlicensed spectrum as a technically feasible option for ATG, Gogo began selling and offering for sale, a system that mimics what SmartSky invented.

In February 2022, in response to the obvious and ongoing infringement on its patents, SmartSky filed a patent lawsuit against Gogo. It further asked the District Court in Delaware for a Preliminary Injunction that would immediately bar Gogo from selling any solution that used SmartSky technology. The District Court denied the Preliminary Injunction and the underlying case is proceeding towards a trial scheduled for April 2025. SmartSky expects to secure both a permanent injunction and substantial damages as a result of the trial.

April 2024 Update: SmartSky Prevails in Gogo’s Attempt to Delay SmartSky’s Case 

March 2024 Update: Court Favors SmartSky Claim Construction Definitions on “Hard” Versus “Soft Handoffs”

Following a March 6 “Markman Hearing,” Delaware District Court Judge Jennifer L. Hall issued an oral ruling supporting SmartSky’s argument that its patent covers both “soft” and “hard handoffs,” key terms of art that will be crucial to proving that Gogo’s promised 5G system uses SmartySky’s technology. In addition to ruling in SmartSky’s favor on this foundational patent, Judge Hall further agreed with SmartSky’s description of the novel “wedge-shaped architecture” of radio signals used in its newly invented beamforming technology. Together these two decisions strongly support SmartSky’s allegations of infringement and could lead to significant financial damages for Gogo. The rulings further call into question the timing and viability of Gogo’s long-awaited 5G network launch. Several other claim construction definitions covered in the hearing are likely to be decided by a jury when the case goes to trial in April of 2025. 

One of the foundational issues in the case, related to a series of patents known as the “’947” patents, has to do with how SmartSky’s inflight connectivity system hands off a radio signal as an aircraft travels between terrestrial base stations. Judge Hall agreed with SmartSky that the ‘947 family of patents cover both soft and hard handoffs and refer to a “continuous and uninterrupted” connection that could be maintained in either a physical connection or in the actual user experience. The definition of this patent language is crucial to the case because Gogo has admitted that its 5G system uses hard handoffs, which would be a clear infringement on SmartSky’s patent. Furthermore, Gogo had previously lost a challenge of the ‘947 patent at the U.S. Patent and Trademark Office, which effectively removes a viable invalidity defense for Gogo.

In addition to the foundational issue of handoffs, Judge Hall also indicated that the court would adopt SmartSky’s definition of a wedge-shaped architecture described in its “’077” patent. The ‘077 patent deals with the constitution of radio signals used in SmartSky’s new, cutting-edge beamforming technology that has significantly improved how air-to-ground inflight connectivity is delivered. Instead of broadcasting a signal widely and vertically, as old legacy ATG technology did, SmartSky narrowcasts wedge-shaped signals, and orients them toward the horizon, making a one-to-one connection with each aircraft and enabling harmonious reuse of terrestrial spectrum in the air. This key differentiator had never been done before and was crucial to avoiding the noise and interference emanating from other ground-based radio signals, especially in high traffic urban areas where many other devices are operating in the unlicensed spectrum. Gogo’s description in court papers of its 5G system clearly shows infringement on this architecture.  

During the Markman hearing, which is a court proceeding to determine the definition of legal terms in a case, Judge Hall further ruled on several other terms used in the six patents SmartSky asserted.

January 2024 Update: SmartSky Reaffirms the Merits of its Patent Infringement Case Against Gogo Business Aviation

In response to the Federal Circuit Court of Appeals decision today, which did not reverse a District Court denial of a preliminary injunction, SmartSky reaffirms the merits of its patent infringement case against Gogo Business Aviation originally filed in February of 2022. The appellate decision was based solely on the issue of irreparable harm and did not address any of SmartSky’s patent infringement claims at this preliminary stage of the case.

A preliminary injunction is an extraordinary measure because it stops a company from using and selling stolen patented technology during the pendency of the case. While preliminary injunctions are rarely granted, SmartSky was compelled to seek such extraordinary relief given Gogo’s egregious infringement.

In July of 2022, SmartSky announced the nationwide availability of its inflight internet network based on groundbreaking, patented technology that significantly outperforms any other previous or currently available air-to-ground solution in North America. In contrast, since 2008 Gogo has announced plans for at least four upgrades to its 3G-based technology. After failing to follow-through on those, it abruptly announced in 2016 that it was changing course, and instead chose to market and sell Gogo 5G, a product that is substantially similar to SmartSky’s air-to-ground network. Gogo’s actions are a clear, obvious, and willful infringement, even if the Gogo 5G network is still inactive as noted by the Court of Appeals.

SmartSky continues to expect it will be fully vindicated in its patent rights claims as the case moves forward and expects to secure a permanent injunction and substantial damages as a result of the trial scheduled for April 2025.

You can view the Federal Circuit Court of Appeals decision here.

February 2023 Update: SmartSky Expands Patent Portfolio to Protect Industry Leading Innovations

This month SmartSky added two new patents to its ongoing lawsuit against Gogo. The additional patents were recently granted to SmartSky by the US Patent & Trademark Office in December of 2022 and January of 2023, and both are related to patents already included in the original complaint. The new patents further protect SmartSky inventions from illegal use and make infringement claims against Gogo even clearer for the court.

In the meantime, the underlying infringement case is proceeding with full discovery and continued action by the Delaware District Court. The Court is expected to determine a timeline for the proceedings shortly. The case could take up to two years to decide.

Case Outlook

Spring or Summer 2023, SmartSky expects to have its first opportunity to present its arguments in-person in a hearing before the Appeals court. A three-judge panel in the US Court of Appeals is currently reviewing SmartSky’s Motion for Preliminary Injunction which was filed with the court right after the original Complaint. While preliminary injunctions are infrequently granted by the courts, this extraordinary measure is warranted in this case due to the clear, irreparable harm Gogo’s ongoing infringement is causing SmartSky. A favorable ruling from the judges would mean Gogo would be prevented from selling the related technology immediately, until the underlying case is ultimately decided.

March 7, 2022 Announcement: SmartSky Files Patent Infringement Suit Against Gogo

In the world of wireless, spectrum is the scarcest resource, similar to land in real estate.  Simply put, more spectrum means more speed.   SmartSky’s air-to-ground (ATG) network is built upon a decade of patented innovation that uniquely enables it to effectively use 60 MHz of spectrum in the unlicensed band.  In stark contrast, the legacy Gogo ATG network uses only 3 MHz of licensed spectrum. With twenty times more spectrum than our competition, SmartSky can deliver data roughly 10x faster than ever before. 

While anyone can use the unlicensed band within the confines of the FCC’s rules, there are significant technical challenges to overcome, not the least of which is avoiding interference from other traffic using the band.  What is not permitted by law is copying SmartSky’s patented means of providing ATG inflight connectivity.  In a misguided effort to preserve its virtual monopoly, Gogo Business Aviation has chosen to unlawfully copy SmartSky’s patented approach. The company has publicly admitted it is making, using, and selling a system it calls “Gogo 5G” that fundamentally relies upon at least 4 patents held by SmartSky.  Notably, Gogo proceeded with Gogo 5G despite having already lost a validity challenge it brought against one of these four patents in 2020. 

On February 28, 2022, SmartSky filed a patent infringement lawsuit against Gogo Business Aviation that will not only protect the company’s intellectual property but will help customers and partners avoid making what could otherwise be stranded investments equipping their aircraft with Gogo’s infringing technology. The lawsuit, and a subsequent motion for preliminary injunction, asks the court to block Gogo from making, using and selling its “Gogo 5G” inflight Internet service and related hardware, which includes any required components (AVANCE L5, Gogo X3, and antennas). While the infringement case may take several years to resolve, a ruling on the preliminary injunction is expected this summer. 

The lawsuit seeks to bar Gogo from selling SmartSky’s patented technology as Gogo’s own. The main areas of infringement of Gogo’s “Gogo 5G” product involve the use of the unlicensed radio frequency (RF) spectrum to deliver air-to-ground (ATG) in-flight connectivity (IFC) using novel network and transmission architecture that include the SmartSky’s technology advancements generally referred to as “beamforming hand-off and beamforming hand-off in the unlicensed band”, “horizon-oriented architecture” and “harmonious spectrum re-use” technology, all of which are patented by SmartSky. The lawsuit extends to unlawful use of SmartSky’s patented technologies including when these technologies are referred to by other names or described in other ways.

Case Documents

(Click to download)

SmartSky v. Gogo Complaint             SmartSky Motion for Preliminary Injunction

Goldberg Declaration REDACTED Public Version               SmartSky Opening Brief REDACTED Public Version

Frequently Asked Questions

What is SmartSky Networks?

SmartSky Networks is an innovative aviation connectivity company that invented and patented a unique system for providing a faster, better airborne internet connection that utilizes the unlicensed radio frequency spectrum and 60 MHz of bandwidth, 20x the bandwidth of Gogo’s 3MHz licensed service.

Why is SmartSky’s inflight connectivity technology revolutionary?

The new SmartSky system allows—for the first time ever—connectivity bandwidth, latencies, and transmission speeds capable of supporting uses such as cloud-based applications, video conferencing while in flight, and real-time aircraft data, all by multiple devices at the same time.

SmartSky’s ATG network offers performance nearly 10x faster than any other ground- or satellite-based in-flight service previously available, with very low latency and symmetrical bandwidth providing equal capacity for moving data to and from the aircraft.

To make this possible, SmartSky spent 10 years developing a patented “beamforming” and “layered wedge” technology that connects each aircraft to a separate transmission beam on the network at one time to avoid contention from other aircraft on the network and ground signal interference by using 60 MHz of the 83.5 MHz available in the 2.4 GHz unlicensed spectrum band.

Why did SmartSky file a patent infringement lawsuit against Gogo?

SmartSky invented and patented a technology approach that enables compliance with FCC rules while making a system that delivers connectivity for aviation that is unmatched, both technically and economically.

SmartSky filed suit because Gogo Business Aviation’s newly announced, but still delayed, “5G” internet service is unlawfully copying SmartSky’s patented approach.

A primary purpose of U.S. patent law is to protect the intellectual property of an inventor. It ensures others cannot swoop in and use the fruits of the inventor’s labor at will and it encourages innovation. In the legal sense, a patent protects the patent owner’s exclusive right to import, make, sell, use, and offer for sale the invention during the term of the patent.

Using patents without permission is unlawful and impacts SmartSky’s business, customers, potential customers, partners, investors, employees, and the business aviation sector at large. Infringement also stifles innovation in the economy at large.

What is a Preliminary Injunction and why did SmartSky file a motion for Preliminary Injunction in addition to its lawsuit against Gogo?

A motion for preliminary injunction is used in extraordinary cases like this one where the patent infringement is ongoing, willful, and severe in consequence given it effectively has SmartSky competing with itself (via its own patented inventions being mimicked by Gogo) in the ATG market consisting of just Gogo and SmartSky.

If the courts had granted the Preliminary Injunction, it would have effectively stopped Gogo from making, offering for sale, or selling their “5G” network until the conclusion of the much longer duration lawsuit.

A Preliminary Injunction also would have protected ATG customers from making stranded investments in Gogo’s infringing technology prior to the conclusion of the infringement trial.

In the absence of a Preliminary Injunction, SmartSky still expects to secure a Permanent Injunction and substantial damages at the trial (scheduled for April 2025).

What is the status of SmartSky’s motion for Preliminary Injunction?

In October 2022, SmartSky chose to Appeal a lower court decision on the Preliminary Injunction to the Federal Appeals Court due to the strength of its case and its strong conviction that patent holder rights must be upheld.

In January 2024, a three-judge panel in the U.S. Court of Appeals, affirmed the lower District Court denial of SmartSky’s motion for preliminary injunction.

Regardless of the outcome of the Appeal, the case against Gogo is clear: it could not have created the promised, but still not available, Gogo “5G” system without using SmartSky’s patented technology.

SmartSky maintains the utmost confidence in the merits of its underlying patent infringement lawsuit against Gogo and will continue to vigorously defend its rights.

The case also will not affect SmartSky’s ability to continue to deliver its game-changing technology to business aviation users across the country.

What led to SmartSky’s legal actions against Gogo?

For many years, Gogo publicly dismissed the feasibility of using unlicensed spectrum and focused on buying expensive licenses from the FCC to deliver satellite and ATG inflight connectivity.

SmartSky spent more than 10 years overcoming technical challenges to invent a new way to deliver a faster, better broadband experience in the air via the unlicensed spectrum.

It was only when SmartSky proved it had a significantly better, commercially viable product that Gogo shifted its attention to the unlicensed band and is now attempting to introduce its own long-promised network upgrade that is fundamentally based on the patented technology SmartSky is currently delivering to its customers nationwide.

What is the likely result of the patent infringement lawsuit SmartSky filed against Gogo?

A decision in favor of SmartSky in this case could result in payment of substantial monetary damages to SmartSky and block Gogo from selling its “Gogo 5G” service until the last asserted patent expires in 2035.

How long is the case expected to take?

SmartSky is calling for a jury trial in the underlying court case, which is scheduled for April of 2025.

How do you know that Gogo is unlawfully using SmartSky’s technology?

Gogo has publicly admitted in media interviews, on investor earnings calls, and in promotional materials to using the patented technology approach described in SmartSky’s patents.

What is the key infringement laid out in SmartSky’s lawsuit against Gogo?

The main area of infringement of Gogo’s “Gogo 5G” product involves the use of the unlicensed radio frequency (RF) spectrum to deliver Air-to-Ground (ATG) in-flight connectivity (IFC) using beamforming handoff, wedge and layered wedge technology patented by SmartSky. A detailed recitation of the evidence can be found in SmartSky’s legal filings.

What Gogo products does SmartSky’s lawsuit affect?

This lawsuit and preliminary injunction could block Gogo from making, using and selling its promised “Gogo 5G” inflight Internet service and related hardware, which includes any required components such as its AVANCE L5, Gogo X3, and antennas as part of a Gogo 5G installation. It does not affect Gogo selling its current or legacy Gogo offerings as we currently understand them.

Why hadn’t anyone used the unlicensed band for inflight connectivity before SmartSky proved it worked?

Using the unlicensed band for inflight connectivity was not viewed as realistically possible because of “noise” from ground use in the free, unlicensed spectrum. Anyone can use the unlicensed band within the confines of the FCC’s rules. That includes all kinds of signals from terrestrial devices including things like mobile phones. Traditional ATG systems looked downward into that signal traffic and would be unable to make a connection. Many thought it was better to buy exclusive, but expensive licenses.

Gogo spent 2011-2016 lobbying the FCC for more licensed spectrum, before announcing a shift of its approach to unlicensed spectrum in 2016 on the exact same day SmartSky received certification of its system by the FCC for use in the unlicensed band.

In a January 2019 article published by Satellite Mobility World, Gogo CEO Oak Thorne said, “The problem with 2.4 GHz is that there is a high noise floor and that’s because it’s so heavily used on the ground. We think that when aircraft equipped with only a 2.4 GHz system fly over congested areas, they are going to lose coverage.” The system SmartSky customers are flying with today has proved these statements to be wrong largely due to the patented technology innovations SmartSky has introduced.

Why did SmartSky believe the unlicensed spectrum was the best way to go for inflight connectivity?

In the world of wireless, spectrum is the scarcest resource, similar to land in real estate. Simply put, more spectrum means more speed. SmartSky sought the path to deliver more speed and capacity for inflight connectivity. Gogo’s legacy air-to-ground (ATG) network uses just 3 MHz of licensed spectrum. In stark contrast, SmartSky’s ATG network, built upon a decade of patented innovation, uniquely enables it to effectively use 60 MHz of spectrum in the unlicensed band. With twenty times more spectrum than Gogo’s legacy network, SmartSky can deliver data roughly 10x faster than Gogo’s legacy products.

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Point of Contact:

SmartSky Networks, LLC:

VP Marketing and Communications
Jana Rucker
E: jana.rucker@smartskynetworks.com
T: +1 925 895 4919