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america invents act, IP, Patent

Patent Players In Glass Houses Shouldn’t Point Fingers At Thrown Stones

It takes a thoroughly mixed metaphor to sort through the mixed statements and actions coming from those screaming the loudest in favor of so-called patent “reform.”  For example, Google’s head of Patent Strategy, Michelle Lee, and other members of the Patent Fairness Coalition have complained for years about the cost of patent litigation. However, an examination of the litigation tactics employed by PFC’s own members, specifically Google, send a different message. As usual, the fingers are pointing in the wrong direction when companies like Google specifically embrace practices serving no other purpose than to needlessly increase the cost of litigation.

Back in 2009, Michelle Lee was enthusiastic about the prospect of a patent reform bill aimed at gutting the rights of patent holders, saying:

All too often, Google and other companies face mounting legal costs to defend against questionable patent claims from speculators gaming the system to reap windfall profits. And those lawsuits make it more difficult and costly to introduce the next revolutionary product.

Via Patent reform needed more than ever

The Patent Fairness Coalition, of which Google is a part, states:

Abuse of the patent system results hurt consumers and businesses. Today, litigating a typical patent case costs $4.5 million through trial. This is more than four times as expensive as a typical copyright case with similar liability exposure.

Via Why Change is Needed

The PFC also appears to endorse comments from Time Warner Chief Patent Counsel Chuck Fish, who said:

Patent litigation is extremely expensive, involving high expert witness fees, attorneys’ fees and extensive discovery. However, the cost of such litigation often falls disproportionately on defendants.

Via Testimony Before US House IP Subcommittee

Further, PFC (and its cadre of mega-businesses) makes a lame attempt to put together a “case study” on harmful effects of patent litigation.  Do they point to a large company whose existence is threatened by the patent system? Hardly! The only comparison they can muster is to the microscopic “FotoTime” (a company so small, it doesn’t have a Google Finance listing):

The cost of going to court would have put the company out of business; legal fees can cost as much as $5 million per case. Small companies, like FotoTime, aim to avoid those costly fees and hope the price of settling doesn’t put them out of business. Under the current system, litigation costs are more expensive for the defendant because they carry the burden of proving that they did not infringe on the patents.

Via FotoTime Case Study

So, to sum up, patent reform is needed because patent owners are foisting expensive litigation costs onto businesses, damaging the process of “innovation.”  Of course, recent events from the Oracle v. Google litigation can actually demonstrate this to be a self-inflicted problem.  From Groklaw:

Oracle and Google have filed a joint claim construction statement [PDF]. This is a standard thing that you have to do in all patent infringement cases in the U.S. District Court for the Northern District of California. It’s a statement where the parties let the judge know how they each construe the words in the patents allegedly infringed.

Via Oracle and Google Tell the Court the Claim Constructions They Agree and Disagree On

This type of joint claim construction statement is actually common in a lot of courts.  The idea is that the court will decide what words in the patent mean, and provide those definitions to the jury so that it can decide if the software and methods used by Google actually infringe Oracle’s patents.  To kick off this process, the parties try to agree on as many of the terms as they can, and submit their competing definitions to the judge.  The judge then resolves any differences in interpretation and scope of the patent.

For example, computer-readable medium. Simple enough, right? Oracle sure thinks so, as it proposes the relatively simple definition: “a storage device for use by a computer.”  Meanwhile, what does Google think this term means?  From the Joint Claim Construction Statement:

any medium that participates in providing instructions to a processor for execution, including but not limited to, optical or magnetic disks, dynamic memory, coaxial cables, copper wire, fiber optics, acoustic or light waves, radio-waves and infra-red data communications

So what does this have to do with Google’s complaints regarding the cost of litigation? Plenty. Aside from the fact that Google is contesting the meaning of relatively common terms, the definition proposed is incoherent and designed to confuse and obfuscate the meaning of the patent, rather than teach or explain.

You see, despite the lies from the Patent Fairness Coalition printed above (and discussed previously), Google knows that it will be Oracle’s duty at trial to prove that Google practices each and every element of the patent claims asserted against it (not the other way around, as suggested by PFC).  If Google prevails in its argument, the jury will be instructed that it cannot find in favor of Oracle unless it uses (along with the other elements) a “medium that participates in providing instructions to a processor for execution, including but not limited to, optical or magnetic disks, dynamic memory, coaxial cables, copper wire, fiber optics, acoustic or light waves, radio-waves and infra-red data communications.”

Ultimately, because of the way this definition is written (i.e. “including but not limited to”), Oracle will likely be able to offer evidence showing that Google does, in fact, meet this limitation. However, the jury would be given this bulky, largely confusing and meaningless definition to work with, along with at least a dozen other definitions, increasing the chance of getting a “random” verdict.

It would be an absolute travesty if the Patent Reform Act America Invents Act (or something similar) were passed under the proxy of “high litigation costs” created by the very same companies doing the complaining.



7 thoughts on “Patent Players In Glass Houses Shouldn’t Point Fingers At Thrown Stones

  1. You are completely correct. Patent reform has nothing to do with improving the patent system. Rather, it is a back door effort to destroy it and their small entity and startup would be competitors.

    Small entities have been given far too little voice on this bill when one considers that they rely far more heavily on the patent system than do large firms who can control their markets by their size alone. The smaller the firm, the more they rely on patents -especially startups and individual inventors. Yet small entities create the lion’s share of new jobs. According to recent studies by the Kauffman Foundation and economists at the U.S. Census Bureau, “startups aren’t everything when it comes to job growth. They’re the only thing.” Congress is rushing headlong into disaster. This bill will be a wholesale slaughter of US jobs.

    “Patent reform”

    Just because they call it “reform” doesn’t mean it is. Patent reform is a fraud on America.

    Please see http://truereform.piausa.org/ for a different/opposing view on patent reform.

    Posted by staff | March 15, 2011, 9:45 am
  2. Just a note with regard to the claim construction statement: It appears that Google is arguing for a broader definition of the “computer-readable medium” claims, not a narrower one.

    Google is trying to tie Oracle to the definition of “computer-readable medium” that Oracle provided in the specification of the various patents, and Oracle is trying to limit the scope of “computer-readable medium” to definitions provided in third-party dictionaries.

    A likely reason that Google is arguing for this broader definition is that if the claim is construed to cover signals (such as ‘acoustic or light waves, radio-waves and infra-red data communications’), the claim will likely be found to be invalid under In re Nuijten.

    Posted by David Sheldon | March 16, 2011, 12:38 pm
  3. I hadn’t thought of that. Arguing for a construction that will purposefully invalidate the claim … Another good use of resources.

    Posted by Patrick | March 16, 2011, 1:01 pm


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