
Google set to face Intellectual Ventures in landmark patent trial - kjhughes
http://www.reuters.com/article/2014/01/20/us-google-iv-trial-idUSBREA0J0PC20140120
======
WildUtah
The suit in question (11-908 in Delaware federal district court [0]) was filed
in October of 2011. It is coming to trial in 2014 and the participants have
probably spent well over a million dollars each getting to this point. That
alone tells you all you need to know about the chances that a startup company
has in getting justice or even just surviving against a garbage patent abuser
in court.

Google did not own Motorola when the case was filed and Google is not a named
defendant, contrary to the deliberately misleading headline.

The Reuters article doesn't say anything about what the six patents claim or
even give their numbers. Those numbers are 7,810,144 (the '144 patent),
6,412,953 (the '953 patent), 7,409,450, 7,120,462, 6,557,054, and 6,658,464.

The Reuters article does mention that the accused devices are older Moto
phones and accessories. Newer devices than 2011 are, of course, not in the
original complaint and usually are not added at this late stage.

The '144 patent is for a "File Transfer System for Direct Transfer Between
Computers" \-- describing a subset of SMS or IRC style messaging -- filed in
1997 and repeatedly rejected until the PTO folded under seven continued
amended petitions in 2010. There is no limit to the patent amendments an
applicant can make and no such thing as a final rejection at the PTO.
Applicants are encouraged to reword claims to cover technology invented by
others since the original application. [1]

If you'd like to be infuriated about how the patent system abuses software and
computer networks, read the linked [0] opinion starting on page 14 where claim
construction begins.

The '953 patent was filed in 1998 vaguely describing long established LCD
backlighting practice. The '054 patent, "Method and System for Distributing
Updates by Presenting Directory of Software Available for User Installation
That Is Not Already Installed on User Station," was filed in 2000. The '464
patent, "User Station Software That Controls Transport, Storage, and
Presentation of Content from a Remote Source," is like iBooks or Archie and
filed in 1994.

The '450 patent, "Transmission Control Protocol/Internet Protocol (TCP/IP)
Packet-Centric Wireless Point to Multi-Point (PTMP) Transmission System
Architecture," was filed in 1998. It describes the use of any QoS scheme that
includes packet inspection over a wireless network.

The '462 patent, "Portable Computing, Communication and Entertainment Device
with Central Processor Carried in a Detachable Handset," filed in 1999
describes handheld computers with a docking station. It does not describe how
to build such a device, of course, just that one could exist.

[0] Summary judgement motion here explains most of the issues
[http://www.ded.uscourts.gov/sites/default/files/opinions/slr...](http://www.ded.uscourts.gov/sites/default/files/opinions/slr/2014/january/11-908.pdf)

[1]
[http://www.patenthawk.com/blog_docs/2004_Continuations_Lemle...](http://www.patenthawk.com/blog_docs/2004_Continuations_Lemley&Moore.pdf)

~~~
throwawaykf03
_> and repeatedly rejected until the PTO folded under seven continued amended
petitions in 2010_

Also called "prosecution". This is, literally, how _every_ patent is
prosecuted at the USPTO: the applicants file claims as broad as they dare,
examiners reject using prior art (or other statutory reasons), after which the
applicants amend claims to sidestep cited reasons, and rinse-and-repeat, until
the applicant finally presents a set of claims that the examiner cannot
reject. It is not "folding", it is being procedurally unable to issue a
rejection.

The only catch is that examiner time is not free, so each attempt costs some
thousand USD, and gives you one non-final rejection followed by a final
rejection -- which is, of course, not final, because the applicant can just
pay the requisite fees to continue examination. It's not like the applicant
gets multiple bites at the apple for free.

 _> Applicants are encouraged to reword claims to cover technology invented by
others since the original application. _

Funny, but no. The examiner would like nothing more than getting rid of a case
for once and for all, and they can't make frivolous allowances either. (Which
is why you get cases like the one above where the applicant had to try seven
times to get an allowance.) They can very much make frivolous rejections,
though, and they do. There really is no feasible recourse for those other than
coughing up more fees and forging on.

The reality of continuations is, applicants have the right to reword claims
_as long as the original supports the claims_ , and many applicants exercise
that right. Because, if they find something out there that is described in
their patent but sidesteps their claims, they'd be outta luck. The Doctrine of
Equivalents goes only so far, especially when juries are involved.

Continuations _can_ be abused, but it does not mean they always _are_. Unless
new matter is added, the new claims must still be constrained by the spec of
the original patent. (If the new claims refer any new material, their priority
dates effectively change to the date the new matter was introduced,
automatically bring into play all the new prior art introduced in the meantime
as well.) So the claims in continuations are still judged in context of the
prior art present at the time the spec was filed.

 _> The '462 patent ... It does not describe how to build such a device, of
course, just that one could exist_

I dunno, the figures look pretty descriptive to me:

[http://patentimages.storage.googleapis.com/US7120462B2/US071...](http://patentimages.storage.googleapis.com/US7120462B2/US07120462-20061010-D00001.png)

[http://patentimages.storage.googleapis.com/US7120462B2/US071...](http://patentimages.storage.googleapis.com/US7120462B2/US07120462-20061010-D00002.png)

I agree, however, that it is _very instructive_ to read through the claim
construction arguments, just to get an idea of how these things shake out. It
is all technical and reasonably easy to grasp, so if you have a few minutes
free, go through a few pages of this. (Any more and you run the risk of dozing
off.) I couldn't find examples of "abuse of software and networks", though.

------
belgianguy
It's for cases like these I miss Groklaw. The reporting that we get now
usually is either shilling/biased or too low on details to get a clear picture
of what went down, as patents and lawyerese usually result in a vague mess
most of the time.

I hope Google knocks 'em out, but sadly the US legal system has 'surprised' me
a bit too often to feel confident in the outcome.

~~~
lcovington
I have to disagree, I find Groklaw extremely biased as well. It just happens
that the bias seems to fit with your personal biases as well, so it appears
like good coverage. This was especially true during Samsung vs. Apple, or with
anything to do with Microsoft, or with defending Motorola's abuse of FRAND
patents.

~~~
bertil
I remember Groklaw actually sorting his technical understanding and personal
bias.

~~~
simonb
s/his/her/g

------
reuven
In case anyone missed it, This American Life had two great shows about patent
trolls, including Intellectual Ventures:

[http://www.thisamericanlife.org/radio-
archives/episode/441/w...](http://www.thisamericanlife.org/radio-
archives/episode/441/when-patents-attack)

[http://www.thisamericanlife.org/radio-
archives/episode/496/w...](http://www.thisamericanlife.org/radio-
archives/episode/496/when-patents-attack-part-two)

I always knew that patent trolls were a problem, and that the US patent system
had big issues, but these shows made it oh-so-clear just how bad things are.

~~~
throwawaykf03
Every time someone links to those episodes I feel compelled to chime in and
note that they (well, the first one, at least) are a terrible piece of
reporting about patents.

1\. Read through the transcript of the first episode. Note that the word
"claims" shows up not even once.

1\. a) If you don't know why that's a problem, you're in no shape to judge the
patent system either.

2\. All the patents at the M-CAM guy says are "on the same thing" are actually
not. I know because I read them all.

3\. There is no such thing as "a patent on toast". It's a downright shame that
the authors didn't think to double check that with someone who, y'know, real
understands how patents work. But oh look, amongst other things, M-CAM sells
"patent risk management" services! No, not a conflict of interest there at
all.

4\. They talk to engineers (like many you'll find on HN) to get their views on
patents. And like most here, none of them seems to understand how patents
work. (Again, see point 1. a) above.) What do you expect will happen when you
ask a Blub programmer his views on Haskell?

5\. In the first episode, they insinuate that IV doesn't pay inventors like
they claim. In the second episode, turns out that they do pay quite well, but
oh look! that inventor is totally a schmuck for ripping off his coinventors!
(Is he really the kind of inventor that IV is paying?!)

~~~
nickff
> _" 3\. There is no such thing as "a patent on toast". It's a downright shame
> that the authors didn't think to double check that with someone who, y'know,
> real understands how patents work. But oh look, amongst other things, M-CAM
> sells "patent risk management" services! No, not a conflict of interest
> there at all."_

Bread refreshing method US 6080436 A

[http://www.google.ca/patents/US6080436](http://www.google.ca/patents/US6080436)

~~~
belorn
If you do the following, you are committing a patent infringement.

a) placing a bread product in an oven having at least one heating element,

b) setting the temperature of the heating elements between 2500 F. and 4500
F., and

c) ceasing exposure of the bread product to the at least one heating element
after a period of 3 sec. to 90 sec.

~~~
cma
Sounds like a toaster where you move the bread away from the element rather
than turn the element off. E.g. what happens in thousands of bread/toast
factories around the world.

------
WalterBright
Before 1990, people weren't suing each other over software patents. And the
software industry did just fine - it was a period of huge innovation and rapid
progress. We know what the software development landscape looks like both with
and without patents.

It looks much better without.

~~~
acdha
It might not have been the booming industry it is today but patent trolls
existed in the 80s, too. Here's John Walker, one of the founders of AutoDesk,
writing in 1993:

“Ever since Autodesk had to pay $25,000 to ``license'' a patent which claimed
the invention of XOR-draw for screen cursors (the patent was filed years after
everybody in computer graphics was already using that trick), at the risk of
delaying or cancelling our Initial Public Offering in 1985, I've been
convinced that software patents are not only a terrible idea, but one of the
principal threats to the software industry.”

[http://www.fourmilab.ch/autofile/www/chapter2_105.html](http://www.fourmilab.ch/autofile/www/chapter2_105.html)

~~~
WalterBright
Yes, it was the XOR patent that opened the door to all the software patents
that followed.

~~~
acdha
I believe the XOR patent was the first major one, and certainly the most
blatant troll – it hit most of the industry for a technique which had been
described a decade before filing – but the software patent mess started
arguably in 1981. Wikipedia has timeline of the evolving caselaw:

[http://en.wikipedia.org/wiki/Software_patents_under_United_S...](http://en.wikipedia.org/wiki/Software_patents_under_United_States_patent_law#History)

~~~
cromwellian
It's also the patent that put Commodore out of business.

------
zeruch
I won't understate this: I want Google to eviscerate IV's entire reason for
existence.

~~~
IBM
I want Google to win if they don't infringe on their patents.

~~~
bertil
I fully appreciate your intention to moderate the belligerent tone with reason
and a Kantian admiration for applying the law as it is. However, I believe
that the contention with Intellectual Ventures is that they hold patents that
many say were awarded _in spite_ of what was considered at the time (and far
more so now) common concepts. It seems that voiding those patents is
unreasonably hard with the law as it stands. Therefore, I hope that the judge
considers not just the case, but also the industry-wide consequences, and
accepts that what is commonly accepted in tech, for the greater good, are
close imitation of previous designs. If I could influence the decision, I
would gladly point at Haute-cuisine and their original idea-defending
mechanisms.

------
stuart78
This is a big test for IV, but I am uncertain that it will individually change
the course of affairs for the general patent question. The second This
American Life episode cited by Reuven includes a good indication of why. These
cases seem often to be examined not on underlying principle, but on the direct
evidence. The 'network update' patent from TAL was busted not because the
patent itself was found to be ambiguous or over-broad but because its
authorship was incorrectly assigned to only one of its 'inventors'. Super
narrow and no principle other than "check your application more carefully next
time".

In my opinion, this is how it should be. Courts should enforce the law, not
change it (excepting the Supreme Court's right to reject the
unconstitutional). For that, we need to work through Congress to modernize the
definition of patents in respect to software.

These cases play an important role in that process, which is to create a body
of guidance on how software patents are being used and how they are being
challenged, for statutory reform and/or legal appeal.

[[As is probably obvious, I am not a lawyer, so I apologize for any legal
inaccuracies in the above]]

~~~
reader5000
Courts are to interpret the law. The legislature says "all horses are
animals." The courts have to answer "what about baby horses? dead horses? are
things that are not horses also animals or can only horses be animals? is a
zebra a horse? what about a horse embryo? who can decide what is a horse or
not? etc etc." The courts have to answer these questions in such a way as to
make life as least shitty as possible. So yes, the validity of shitty patents
is totally up for the courts, but of course the legislature can weigh in any
time.

------
reader5000
Software patents: taking very broad, simple, and obvious ideas, expressing
those ideas in technical language to impress the patent examiners, suing
everybody who independently discovers and uses the idea.

