It's the Ninja patent attack, as I call it, as opposed to the Ghenghis Khan style of patent infringement lawsuit. McKool Smith has no product, hence no countersuit for patent infringement is possible. It's a law firm. It has, therefore, nothing to lose, assuming it doesn't mind being despised from one end of the earth to the other. Obviously that was factored in and dismissed already. Unless one believes their true purpose is to destroy the patent system by showing it up, one must assume that they don't care that everyone hates them.

I thought it would be interesting to find out what it feels like to be on the receiving end of a patent infringement lawsuit, so I interviewed Stuart Nixon, CEO and founder of Earth Resource Mapping, abbreviated as ER Mapper. ER Mapper won a a patent infringement lawsuit brought against it by Lizardtech. On November 1, Lizardtech announced it is appealing that decision. It's a case that has been ongoing for 5 years already in the geospatial imagery market (satellite imagery). It's a significant case, because the outcome affects the ISO JPEG2000 standard, which is the new imagery standard designed to ultimately replace JPG, TIFF etc.. Should Lizardtech win on appeal, their patent would seem to cover JPEG2000.

Lizardtech, Inc. is appealing a US District Court for the Western District of Washington decision which ruled that Claim 21 of US patent #5,710,835 was invalid. The '835 patent was developed by Los Alamos National Laboratories, and licensed by Lizardtech. In March 2004, Chief Judge John Coughenour ruled that the '835 patent Claim 21 and its dependent claims are invalid. Judge Coughenour further ruled that ER Mapper’s products do not infringe the remainder of the '835 patent.

How much, I asked him, has Lizardtech had to pay to defend itself? "We have spent over US$2M to date in legal fees defending ourselves on this case," Nixon answered. "This excludes cost in business and people time, which of course are a much larger figure. Not all of the case was on '835 Claim 21; some aspects were on other related patent claims made by Lizardtech that do not directly impact JPEG2000."

That's not counting the appeal.

I asked him to explain a bit about the effort to establish JPEG2000 as a standard. Who was involved?

"JPEG2000 has been in development for years, designed to cover imagery needs for pretty well all applications ranging from digital cameras through to documentation archival and web use.

"It has been a massive effort, and is now just starting to take off. Companies who worked with or who were on the committee on creating the standard pretty much read like a whos-who of the industry, including IBM, HP, Sony, Sharp, Canon, Ericsson, Motorola, Ricoh and Mitsubishi. www.jpeg.org has more information.

"Some companies - notably IBM - very kindly gave rights to use their patented technology in the JPEG2000 standard. IBM has a very neat encoding technique called Arithmatic Encoding, which they gave permission to use within JPEG2000.

"In the long term, JPEG2000 is expected to replace JPEG, TIFF and other imagery formats. Part 3 of JPEG2000 is also designed to provide motion video. Because JPEG2000 is wavelet based, it does a much better job at compression than older methods like JPEG which used DCT instead of DWT encoding."

So, after years of working to establish the standard, Lizardtech shows up demanding that its palm be crossed with silver by anyone using the standard? JPEG2000 is starting to become widely used. It is now in every copy of Adobe Photoshop CS for example. And if Lizardtech were to win on appeal, what would stop them, I'm thinking, from next going after all the major software and camera manufacturers to claim licensing fees? Some people call that a business model. Lizardtech's press release, however, says this about JPEG 2000:

"LizardTech stated that this case has no relation to the emerging JPEG 2000 format. The company stands firmly behind the JPEG 2000 format, which is an internationally recognized ISO specification based on wavelet technology and represents a significant advance beyond the original JPEG. LizardTech pioneered the use of wavelets in the compression of imagery, and as experts in the application of wavelet technology, LizardTech fully support the JPEG 2000 standard and is working through the Open Geospatial Consortium (OGC) to extend JPEG 2000 capabilities in the geospatial market."

I asked Mr. Nixon what could be used instead, in the way we could all drop GIFF and PNG was developed instead in reaction to that patent situation, or Ogg was developed in reaction to the MP3 patent. He was unable to provide a similar solution or any workaround that he can see. Lizardtech's patent is very broad, I gather, and covers use of wavelets for imagery compression. Period.

So, what would help? Message to the EU: please note what happens when you allow software patents. In addition, ER Mapper asks that supporters of the JPEG2000 standard consider asking the US Federal Appeals Court for permission to file a “friends of the court” brief on ER Mapper’s behalf. Please email DefendJPEG2000@ermapper.com for further information on how you can assist in defending against Lizardtech’s appeal. If you wish more information on the case, here is a very thorough press release. The appeals court ruling is here [PDF].