Letter from AmeriKat I: Google and the "broken" patent system, Oracle v Google, Apple v Psystar & more

The AmeriKat peering from
her suitcase - ready to pounce
on some US IP stories

As a result of an incredibly busy Fall litigation schedule and writing on the unitary patent proposals, it has been a while since the AmeriKat has been, well, truly "the AmeriKat".  During the holiday season, even while she was prowling about in her homeland, she was still very much a "EuroPatKat" in her reporting.   However, with the hopeful passing of any immediate threat to the patent system and with the Scrutiny Committee's more scrutinizing behavior in respect of the proposals, the AmeriKat has been able to revisit her homeland's recent IP news.  Having returned back to this incredibly mild-weathered island on Friday and fuelled by some mean jet-lag on Sunday, the AmeriKat has split her posts into two parts - patents/copyright and trademarks.  

Is Google’s acquisition of IBM patents really indicative of a “broken” patent system?:  Back in October when the AmeriKat was spending quality time with the Rolls Building she started drafting a post regarding Google and its stance on patent filing and litigation.  The post is still languishing in the “draft” purgatory of the IPKat’s blogger account – where relegated and forgotten drafts linger either in the hope of one day being published by their owners or befalling a much quicker death by being mercifully deleted.  Thankfully, the news in the post drafted by the AmeriKat has been resurrected following Google’s recent acquisition of 200 patents from IBM. 

As readers know, Google is in the midst of a raging mobile patents war. As the maker of the Android operating system that has been on the receiving end of several patent infringement suits from Oracle, Apple and Microsoft, as well as an unsuccessful bidder for Nortel's $4.5 billion patent portfolio and vocal opponent to the Novell patent acquisition, Google's stance on the patent system may be quite obvious.

Google's senior VP and chief legal
officer and Stanford
law graduate, David Drummond

In August 2011, a blog post by Google’s Senior VP and chief legal officer David Drummond insinuated that the recent uniting of Apple and Microsoft, companies that had always been “at each other’s throats”, was indicative of the threat posed by Google’s successful Android operating system (see previous blog post in April 2011 by Google's general counsel, Kent Walker).  As a result of the Android’s success Google had been subject to, as Drummond wrote,  

“a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents."   

They’re doing this by banding together to acquire Novell’s old patents (the “CPTN” group including Microsoft and Apple) and Nortel’s old patents (the “Rockstar” group including Microsoft and Apple), to make sure Google didn’t get them; seeking $15 licensing fees for every Android device; attempting to make it more expensive for phone manufacturers to license Android (which we provide free of charge) than Windows Phone 7; and even suing Barnes & Noble, HTC, Motorola, and Samsung. Patents were meant to encourage innovation, but lately they are being used as a weapon to stop it. 

A smartphone might involve as many as 250,000 (largely questionable) patent claims, and our competitors want to impose a “tax” for these dubious patents that makes Android devices more expensive for consumers. They want to make it harder for manufacturers to sell Android devices. Instead of competing by building new features or devices, they are fighting through litigation.”

The US courts and USPTO may be challenged
to put some teeth into patent law,
but the AmeriKat (above) isn't...

In November 2011 following Drummond’s blog post, Google's patent lawyer, Tim Porter, was interviewed by the San Francisco Chronicle about the patent system- calling it "broken".  Carter said in the interview that the challenge confronting the US courts and USPTO is to put some "teeth" in patent law to knock out patent applications that are obvious. He said:

"Really, the challenge that's facing the courts and patent office and all of us is to put some teeth (in the law) and use common sense, like the Supreme Court said in 2007. The legal system should say you shouldn't patent something that's obvious. What we have to do is have real standards for what is patentable. Patents are supposed to be a form of property. The property system doesn't work if you don't have clear boundaries. Also, at the end of the day, damages, injunctions and remedies have to be proportional to the value of the invention. Very often, what is fueling patent-troll lawsuits is the ability to go into court and seek astronomical damages based on what any rational person would consider a minor component of the product. "

On software patents, Porter dodged the question whether software should be patentable (what else would you expect) but indicated that there were more suitable legal tools for this protection, such as copyright. Begging the question, does the next age in software protection belong to copyright (see Apple v Psystar, Oracle v Google)? Porter also said that the nature of patents and patent litigation is that you never know what a patent covers until a court determines its scope. Porter cited that this position has allowed companies like Microsoft to

"use the large patent portfolio they've built up to get revenue from the success of other companies' products."

Could this be on a coffee mug
at Google's headquarters?

Google’s recent purchase of IBM’s patents covering a range of technology including Javascript widgets and video conferencing follows on from their 2011 acquisition of more than 1,000 patents from IBM.  The patent acquisition covers method and apparatus claims for “dynamically modifying Web page display for mobile devices” and “transfer of web applications between devices”.  Google's purchase of patents including Java technologies may be no coincidence given the ongoing litigation Google is facing with Oracle (see below).  The price of the acquisition is unknown, but again, despite Google’s protestations and incriminations of other companies, by building up their patent portfolio with such acquisitions are they not only doing what companies like Microsoft have done?  Google may say that these acquisitions are defensive mechanisms in order to battle the onslaught of mobile patent claims they are facing due to the Android system, but the AmeriKat wonders how long such a stance will last before the temptation to sue, rather than be sued, bites.  Further, how “broken” is a patent system when Google itself is relying on patents, which they hope are non-obvious and properly granted, to protect itself?   

Further, Google entered an established smart-phone market, how realistic was it to assume that they were not going to have to fight some patent litigation at some point? Or is Porter correct, are all these patent wars a result of applicants being awarded obvious patents in the first place?

  

You can search all of those obvious patents (and non-obvious patents) on Google's patent search engine, Google Patents, here.

No trade secret protection for Apple in Psystar litigation:  A few months ago the AmeriKat wrote about the statement of the CEO of Myriad who said the company would start relying on trade secrets instead of patent rights to protect their inventions. Following Apple's successful copyright litigation against Psystar, Apple has also been attempting to keep under lockdown information about the subject of the dispute - its Mac OS X operating system - contained in court documents which it considers trade secrets.  Apple made the request to keep the information sealed despite much of the information it had classified as a trade secrets being made available on the Internet and in publications.  US District Judge William Alsup of the Northern District of California denied Apple’s request that the information should be kept sealed and ordered that parts of the summary judgment be filed publicly without redaction.  The Judge ruled:

"Much of the information that Apple seeks to seal is publicly available by examining OS X itself or by consulting publicly available sources such as the website for the book OS X Internals by Amit Singh.  Comparing the information Apple seeks to seal and the information publicly available reveals that much of the publicly available information is accurate...Apple cannot have this Court seal information merely to avoid confirming that the publicly available sources got it right."

The decision comes after 3 years of litigation between the parties.  Apple sued Psystar in July 2008 for copyright infringement and associated claims as a result of Psystar manufacture of clones of Mac computers.  Following Apple's success Psystar was prohibited by the court from selling copies of Apple’s operating system.  

District Judge Alsup

Judge Alsup sets March trial date for Oracle v Google showdown:  Speaking of Oracle, Google and Judge Alsup, last Wednesday the latter set a date for the trial of Oracle’s patent and copyright infringement claims against Google in Californian district court.  The dispute centers on whether or not Google's Android system infringes seven of Oracle's Java patents (click here for the complaint).  Oracle acquired the patents at issue from Sun Microsystems when it bought the company in January 2010.  The trial is set to start on or after 19 March 2012 and is broken down into three-parts or a trifurcated trial - which Oracle had opposed.  The first and second parts of the trial will deal with the copyright infringement and patent infringement claims respectively.  The third part will deal with the remaining issues including willfulness and the damages claim. Oracle and Google have 7 days to object to Judge Alsup's pre-trial order.

The willfulness part of the claim was subject to a motion by the parties during last week’s hearing in respect of the inclusion into evidence of an e-mail from Google engineer Tim Lindholm. Under US law (35 USC 284), where a plaintiff proves that a defendant has wilfully infringed a patent a defendant can face having to pay three times the damages.  The e-mail from Lindholm, which Google argued is subject to attorney-client privilege or work-product rules (although those arguements did not find favor with the judge), explains that despite investigating alternative technologies to Java for Android and Chrome, they had not been able to find any suitable alternatives  The only option, Lindholm stated in his e-mail, was to negotiate a licence for Java.  Such an e-mail is of obvious interest to Oracle.  Judge Alsup again denied, for the sixth time, Google's motion to exclude it from evidence.  Last fall, after the fifth denial, Google appealed the issue to the Court of Appeals for the Federal Circuit (CAFC).  According to Florian Mueller of the excellent software and mobile patent blog, FOSS Patents, he does not see that the CAFC will decide anything differently than the trial judge.  For more information on the case and the Lindholm e-mails please see Florian's post here and here. 

AT&T to pay $215 million to TiVo in patent infringement settlement:  The U.S. telecoms giant, AT&T, has settled a patent infringement law suit with digital video recorder company, TiVo.  According to this press release from TiVo, under the settlement, AT&T will pay TiVo at least $215 million until June 2018, starting with an initial lump sum of $51 million followed by $20 million in the first year.  In August 2009, TiVo filed their patent infringement complaint in the Eastern District of Texas claiming that AT&T's U-verse service had infringed three of its patents including US Patent No 6,233,389 for an invention entitled "Multimedia time warping system" which allows a user "to store selected television broadcast programs while the user is simultaneously watching or reviewing another program".  After news of the settlement, TiVO's stocks spiked as much as 22%.