The Patent Wars Continue

The smartphone patent wars have been an interesting site for a young intellectual property attorney like myself.  The value of patents covering various smartphone technologies has made these cases multi-million (or even billion) dollar affairs with far ranging implications for consumers throughout the United States.  In addition, a case like Apple v. Samsung also provides a great deal of drama.  These cases also provide invaluable insight into some of the quirks of our current patent law regime.

Yesterday, the latest and largest salvo got fired.  A company called the Rockstar Consortium filed a massive patent lawsuit against Google.  Rockstar was created by Microsoft, Apple, RIM, Sony, and Erickson in order to pool their resources to bid on Nortel’s patents when Nortel went under.  The companies together managed to out-bid Google with a $4.5 billion dollar bid when the patent portfolio was put up for auction.  Now Rockstar is using those same patents (seven in particular) to sue Google (though they do not specify a damages amount in their prayer for relief).  

The patents, not surprisingly, are vague.  All of the patents cover different aspects of an “Associative Search Engine”.  These aspects include matching search terms to relevant advertising or providing a relevant ad utilizing user supplied search data with the search results.  The complaint doesn’t list any differentiating factors, such as technological means or algorithms for conducting these activities. That means that the patents include a broad range of activities, and Google potentially infringes unless they can convince the court in the Eastern District of Texas that the patents are invalid.  Rockstar’s CEO, John Veschi, even states explicitly that he thinks that “pretty much anybody out there is infringing, I would think. It would be hard for me to envision that there are high-tech companies out there that don’t use some of the patents in our portfolio.” 

Ars Technica points out a big reason why this is a disturbing development (unless you’re a high profile patent attorney): the utilization of a tech company-created patent troll.  Rockstar is not like Prenda or Lodsys, which were smaller companies that acquired patents then aggressively tried to sue larger companies in order to extract settlements.  Rockstar is funded by Microsoft and Apple, to the apparent purpose of crippling Google by striking at the heart of Google’s empire: their ad revenue from searches.  Rockstar doesn’t make anything, and thus can’t be counter-sued (though Google may opt to sue Rockstar’s backers directly in retaliation).  While companies have used these tactics before (there’s even a term for a non-practicing entity funded by larger tech companies: patent privateer), there hasn’t been a privateer with the kind of scale and scope of patent ownership that Rockstar possesses.  Since Rockstar is technically independent, pre-existing agreements between Google and their owners don’t necessarily apply (Veschi even says as much).

All of this highlights the legal absurdity of the situation.  There’s a good argument to be made that the USPTO should not approve patents that include entire technologies, such as LTE or search engine advertising, in the first place.  Some of the patent requirements, such as enablement and novelty, seem to require more specificity in how a particular claim is supposed to operate.  Theoretically, these requirements should provide limitations on the scope of the patent by limiting the patent to the specific process claimed (or by making previous developments in the same field off limits, in the case of novelty).  In practice, this rarely happens with software.  As the patents listed in the case indicate, a clever attorney can word a claim so that it includes the entire field when it comes to various kinds of software.  

I intend to follow this case quite intently.  It should be interesting to see Google’s response, and how this case develops in the future.  

 

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