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 Inflight 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 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.

FEBRUARY 2023 UPDATE

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.

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 |In Press Releases |By brit@smartskynetworks.com

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.

Documents

SmartSky 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 using the unlicensed radio frequency spectrum using 60 MHz, 20x the bandwidth of Gogo’s 3MHz licensed service.

 

Why is SmartSky’s technology revolutionary?

• The new SmartSky system allows—for the first time ever—Internet bandwidth, latencies, and transmission speeds capable of supporting uses such as cloud-based applications, video conferencing while in flight and real-time aircraft data analytics, all by multiple passengers at the same time.
• SmartSky’s network offers performance nearly 10x faster than any other ground- or satellite-based in-flight service previously available, with symmetric bandwidth and very low latency both to and from the aircraft.
• To make this possible, SmartSky spent 10 years developing a patented “beamforming” and “layered wedge” technology that connects only one aircraft to a beam at one time to avoid ground signal interference and other aircraft network traffic 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? Can’t anyone use the unlicensed band and beamforming?

• While anyone is eligible to use the unlicensed band, including beamforming, as long as they abide by the FCC’s rules, the FCC is not tasked with overseeing whether the technology that makes compliance (and commercial effectiveness) possible is patented; that’s the domain of the US Patent Office. SmartSky did not invent (nor is it claiming to have invented) the unlicensed band.  The FCC regulations being used were created long before SmartSky existed.
• SmartSky did invent a patented technology approach that enables compliance with these FCC rules while making the system work for aviation, both technically and economically.
• SmartSky filed suit because Gogo Business Aviation’s newly announced “5G” internet service is unlawfully copying SmartSky’s patented approach.
• 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.  Inventors rely on patent protection to ensure that big companies can’t just swoop in and muscle a smaller competitor out of the market using the little guy’s own invention.
• 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.

 

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 court grants the Preliminary Injunction, it will immediately stop Gogo from making, offering for sale, or selling their 5G network until the conclusion of the much longer duration lawsuit.
• A Preliminary Injunction will protect ATG customers from making stranded investments in Gogo’s infringing technology prior to the conclusion of the infringement trial.

The Preliminary Injunction was denied in a ruling on September 26, 2022. What does this mean for SmartSky’s chances of winning the lawsuit?

• SmartSky chose to Appeal the lower court decision due to the strength of its case and its strong conviction that patent holder rights must be upheld.
• Regardless of the outcome of the Appeal, the case against Gogo is clear: it could not have created the forthcoming 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.

5. What led to this legal action?

• For many years, Gogo publicly dismissed the feasibility of 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 SmartSky’s patented technology approach.

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

• A decision in favor of SmartSky in this case could result in payment of substantial monetary damages 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?

• A preliminary injunction is by nature intended to bring a rapid response. In typical patent cases, a decision on a motion for preliminary injunction can be delivered within several months.
• SmartSky is calling for a jury trial in the underlying court case, which can take two years or more to decide.

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

• Gogo has publicly admitted to using the patented technology approach described in SmartSky’s patents in media interviews, on investor earnings calls and in promotional materials.
• In 2020, Gogo pre-emptively challenged the validity of one of the now asserted patents and lost.
• In Gogo’s May 6, 2021 Q1 earnings call, Gogo’s CEO Oak Thorne said “…we study every one of their patents in a lot of detail, make sure we understand them. And we don’t believe that they have any valid patent that we could be founded infringing upon. Now, they do have patents that we don’t think are valid, because they have ignored prior art.” So Gogo has NOT said they aren’t infringing, rather they are unreasonably insisting that the USPTO made mistakes in issuing us our patents, even in the face of their already having lost a validity challenge.

 

What is the key infringement laid out in the lawsuit?

• 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.

 

What specific SmartSky patents did Gogo infringe?

• Beamforming Handoff. US Patent No. 9,312,947 (“the ’947 Patent”) describes using a software defined radio to implement a technique known as “beamforming” to direct narrow (beamformed) high speed radio signals continuously and uninterrupted to an aircraft from antennas mounted on a network of ground-based stations (i.e., seamless handoffs). In 2020, Gogo pre-emptively challenged the validity of this exact patent and lost, as the US Patent Office agreed with SmartSky and re-affirmed its validity. This patent claims priority back to 2005.
• Unlicensed Band Beamforming Handoff. US Patent No. 11,223,417 (“the ‘417 Patent”) mirrors much of the ‘947 patent, but its patented claims are even more specific to the frequency band involved, covering the range from 2-6 GHz, which–by definition–includes the 2.4 GHz unlicensed band. This patent claims priority back to 2005.
• Horizon-oriented Architecture. US Patent No. 10,257,717 (“the ’717 Patent”) describes a network architecture where the radio signals are oriented toward the horizon instead of widely broadcast as previously done in legacy ATG technology, and which may combine licensed and unlicensed spectrum. This patent claims priority back to 2013.
• Harmonious Spectrum Reuse. US Patent No. 9,730,077 (“the ‘077 Patent) describes an over-lapping, “layered” architectural configuration of horizon-oriented signals that is created by placing a network of base stations apart from each other to ensure constant coverage over a wide area with an aircraft transmitting and receiving towards the horizon, as well, enabling the harmonious reuse of terrestrial spectrum in the air. This patent claims priority back to 2015.

 

11. What Gogo products does this affect?

• This lawsuit and preliminary injunction could block Gogo from making, using and selling its “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 Gogo 5G installation. It does not affect Gogo selling its current or legacy Gogo offerings as we currently understand them.

 

12. Why hasn’t anyone used the unlicensed band in the past?

• Nobody thought it was realistically possible because there is a lot of “noise” 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 down into that traffic and would be unable to make a connection. Many people thought it was easier 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 got its system certified 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.” [side note – SmartSky has demonstrated its system working over congested urban areas to various external parties in varying geographies proving our patented system works.  Many articles have been written about this.]

 

13. Why did SmartSky believe the unlicensed spectrum was the best way to go?

• In the world of wireless, spectrum is the scarcest resource, similar to land in real estate. Simply put, more spectrum means more speed. Gogo’s legacy air-to-ground (ATG) network uses 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.

 

14. Does this have anything at all to do with the FCC and FAA recent issue around 5G?

• No, that’s only related to the use of licensed C-band spectrum, which ranges from 3.7-3.98GHz, that’s being used by terrestrial wireless carriers for their 5G networks. We are in an entirely different unlicensed band, 2.4 GHz.

 

15. Why did SmartSky file its complaint against Gogo now?

• As soon as sufficient evidence was available to prove our allegations, we filed the lawsuit to stop the infringement.

 

16. Does SmartSky need to win in the PI proceedings to win the infringement suit?

• There are many cases where an infringement suit is won even if a PI is not granted, as the bar to get a PI is quite high. Not getting a PI may have nothing to do with the underlying infringement but instead be a result of one of the other factors.

 

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Point of Contact:

SmartSky Networks, LLC:

VP Marketing and Partnerships
Brit Wanick
E: brit@smartskynetworks.com
T: +1 (800) 660-9982 ext. 729