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IP, Patent

Google Says Oracle’s Patents Are Invalid Abstract Ideas, But Why?

When news of the Oracle v Google litigation broke, Groklaw asked whether any of the asserted patents passed the Bilski test for patentability.  Given Groklaw’s position on patentability of software-implemented inventions, this is really not a surprise.  Of course, Groklaw‘s opinions are one thing, and the actions of actual patent owners are quite another.  Of course, if the earlier statement was a prediction that Google would argue non-patentability under Bilski, Groklaw was right. Links to the patents, and an alternate motivation for Google’s argument are after the jump.  Hint: It might have to do with money, and NOT how much Google would or would not have to pay to Oracle.

In Google’s Answer to Oracle’s Complaint, Google does indeed argue (page 8):

Each of the Patents-in-Suit is invalid under 35 U.S.C. § 101 because one or more claims are directed to abstract ideas or other non-statutory subject matter.

Groklaw is overjoyed:

Did I tell you or did I tell you? There are other reasons, as I’ll show you in a minute, why Google thinks the patents should be declared invalid.

Each of the seven patents asserted by Oracle contains method claims that would be considered non-statutory subject matter if they only recite abstract ideas or laws of nature. The patent claim preambles are:

Granted, its fairly common to “throw in the kitchen sink” when raising claims and defenses, and time will only tell whether this Bilski defense is just posturing, or whether Google will use this case as a platform to campaign against issued patents (recall the Bilski decision itself deals with a patent application).

Yet, there is another patent that Google may be considering, and it’s not owned by Larry Ellison.   Actually, it’s not owned by a company at all.  That’s right, this patent.  With claims like “A computer implemented method of scoring a plurality of linked documents,” this patent may also be vulnerable to a Bilski argument.  (Note: how Bilski will be applied, particularly to issued patents, is the subject of much confusion.)

So, IF Google is gearing up to create some caselaw that would help others invalidate patents on Bilski grounds, what does it have to do with the Page Rank patent?  Well, most probably remember the license agreement with Stanford University that granted exclusive rights to the invention of Google founder Larry Page.  Well, prior to Google’s IPO, the agreement was updated (in 2003) to provide exclusive rights to the Page Rank patent until 2011, after which, although Google will still be entitled to practice the patent, but Stanford would also be free to license the technology to others.

Of course, the royalty information is redacted, so we don’t really know how much Google has been paying to Stanford each year.  According to this website, Google has been paying somewhere in the neighborhood of $500,000 per year for the patent licenses.  Of course, since the exclusivity period is over, renegotiating a new exclusive license is not exactly like renewing your apartment lease.  If Google wanted to get exclusivity for the rest of the patent’s life (2018), not only would Google likely have to continue making royalty payments, Stanford may also ask for higher payments, and even another lump-sum cash payment, given the fact that Google reportedly earned $7.2 Billion in over a three month period.  Weakening this patent could be one way Google could drive the price down while keeping its exclusivity for a few more years.

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