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Google's New Patents
Monday, August 01 2011 @ 09:00 AM EDT

We read last week that Google acquired 1000 patents from IBM. This raises some questions. What is the nature of the patents transferred? Will these patents help Google in its immediate fight with Oracle? What policy and practice positions should FOSS-oriented companies take when it comes to "software" patents?

This is not the first batch of patents that Google has purchased from another company. If you go to the U.S. Patent and Trademark Office database of patent assignments you can search for patents assigned to (Assignee) Google. What you will find is that about half of Google's 2,400 patents and published patent applications are "home grown." The rest have been purchased in a series of transactions starting with a purchase from Verizon that occurred in the fall of 2010 (these show up starting on page 46 of the search results list). There are also purchases from Hitachi and Motorola Mobility and earlier transactions with IBM.

However, all of these earlier purchases pale in comparison to the most recent purchase from IBM. By adding 1,000 patents from IBM Google has virtually doubled the size of its patent portfolio. Unfortunately, most of these were acquired after Oracle asserted its patents, and, whether any of them related to Oracle and its product offerings, Google was not in a position to assert them in the litigation.

We have not examined the nature of the portfolio Google acquired from IBM. A list of the acquired patents by title is available here. A random sampling indicates that they are not all "software" patents. Rather, a good number of the transferred patents relate to devices, chips, and other electronics. So it is not clear whether this was a purposefully selected group of patents or simply a random sampling from IBM's rather vast portfolio. In any case, one would believe Google sees this acquisition as adding strength to its overall portfolio of patents. The focus of the non-software patents in this purchase could be handset makers that don't use Android and who may also attempt to attack Google.

Of course, the other question this acquisition begs is the proper stance on "software" patents by a company that relies so significantly on FOSS. I have read the remarks of a number of folks either in or on the fringe of the FOSS community and their criticisms of Google, Red Hat, and others who produce or use FOSS that those companies are hypocrites, arguing at times against "software" patents and at the same time amassing significant patent portfolios of their own. Much of this criticism comes from Europe where the battle to contain "software" patents has at least some prospect of being effective. I would assert that in the U.S., given that "software" patents have been a fact of life for twenty-five years and are supported by a lot of moneyed interests, the prospect of rolling back the clock to life without software patents is remote.

I think, by and large, the FOSS community in the U.S. understands why companies must build patent portfolios to protect themselves (think insurance policy), and the only question left is whether they are likely to slip to the dark side, i.e., start asserting patents offensively. This has been one of the biggest disappointments with Oracle which had long opposed software patents:

Oracle Corporation opposes the patentability of software. The Company believes that existing copyright law and available trade secret protections, as opposed to patent law, are better suited to protecting computer software developments.

Patent law provides to inventors an exclusive right to new technology in return for publication of the technology. This is not appropriate for industries such as software development in which innovations occur rapidly, can be made without a substantial capital investment, and tend to be creative combinations of previously-known techniques.

Even if patent law were appropriate for protection of software, due to the large volume of recently-granted software patents and the rising number of new applications, the current patent process would continue to be troublesome for the software industry. Software patent examinations are hindered by the limited capability of searching prior art, by the turnover rate among examiners in the Patent and Trademark Office, and by the confusion surrounding novelty and innovation in the software arena. The problem is exacerbated by varying international patent laws, which both raise the cost and confuse the issue of patent protection.

Unfortunately, as a defensive strategy, Oracle has been forced to protect itself by selectively applying for patents which will present the best opportunities for cross-licensing between Oracle and other companies who may allege patent infringement.

Quite a contrast to Oracle's current position.

So companies like Google or Red Hat, even though they truly believe "software" patents are a bad idea, cannot unilaterally disarm. The boards of directors of those companies cannot take such a risk on behalf of their shareholders, and no board of a U.S. technology company is going to want to be the guinea pig that unilaterally disarms. That would clearly expose their shareholders to loss. So the arms race continues.

Google has strongly indicated this is what is driving them in their patent acquisitions:

The tech world has recently seen an explosion in patent litigation, often involving low-quality software patents, which threatens to stifle innovation. Some of these lawsuits have been filed by people or companies that have never actually created anything; others are motivated by a desire to block competing products or profit from the success of a rival’s new technology. The patent system should reward those who create the most useful innovations for society, not those who stake bogus claims or file dubious lawsuits. It's for these reasons that Google has long argued in favor of real patent reform, which we believe will benefit users and the U.S. economy as a whole.

But as things stand today, one of a company’s best defenses against this kind of litigation is (ironically) to have a formidable patent portfolio, as this helps maintain your freedom to develop new products and services. Google is a relatively young company, and although we have a growing number of patents, many of our competitors have larger portfolios given their longer histories.

So after a lot of thought, we’ve decided to bid for Nortel’s patent portfolio in the company’s bankruptcy auction. Today, Nortel selected our bid as the “stalking-horse bid," which is the starting point against which others will bid prior to the auction. If successful, we hope this portfolio will not only create a disincentive for others to sue Google, but also help us, our partners and the open source community—which is integrally involved in projects like Android and Chrome—continue to innovate. In the absence of meaningful reform, we believe it's the best long-term solution for Google, our users and our partners.

Posted by Kent Walker, Senior Vice President & General Counsel

In 2002, when Microsoft first started making noises about Linux infringing its patent portfolio, Red Hat had one patent. By the way, by that time Red Hat had also already published its Patent Promise. In response to the saber-rattling by Microsoft, Red Hat began more aggressively seeking patents itself and, in 2005, helped found Open Invention Network (OIN). The principal purpose of OIN, from Red Hat's perspective, was to buy time since a patent portfolio can't be produced overnight.

Now, some 11 years later, Red Hat's portfolio of patents and published patent applications is approaching 1,000. In the past six years OIN has also played a stabilizing role in helping dissuade some from attacking the Linux environment. And while Red Hat has faced a number of patent infringement claims from so-called trolls, it has not been the focus of attack from competitors that some had long predicted. At least on its face, the strategy pursued by Red Hat, Google and others seems to have been largely effective, at least from a shareholder perspective.

IBM, despite its continued pursuit of thousands of patents every year and occasional enforcement of its patents to protect its core business, has shown a willingness to help stabilize the patent scene around software. IBM was one of the founders of OIN, but it has also willingly sold patents to parties like Google that needed to quickly build their portfolios, like LCD.

That still leaves open the question of what position these companies can (or should) adopt when it comes to "software" patents, both as a matter of policy and practice. We will continue to examine this issue in future columns. Stay tuned.


Google's New Patents | 143 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: jesse on Monday, August 01 2011 @ 09:04 AM EDT
Thank you.

[ Reply to This | # ]

  • exam->examine - Authored by: Anonymous on Monday, August 01 2011 @ 01:04 PM EDT
News Pick discussions
Authored by: jesse on Monday, August 01 2011 @ 09:04 AM EDT
Thank you

[ Reply to This | # ]

Comes Thread
Authored by: jesse on Monday, August 01 2011 @ 09:05 AM EDT
Thank you

[ Reply to This | # ]

Off topic discussions
Authored by: jesse on Monday, August 01 2011 @ 09:06 AM EDT
Thank you.

[ Reply to This | # ]

Authored by: jsoulejr on Monday, August 01 2011 @ 09:52 AM EDT

[ Reply to This | # ]

Google's New Patents
Authored by: dwheeler on Monday, August 01 2011 @ 10:01 AM EDT
"I would assert that in the U.S., given that 'software' patents have been a fact of life for twenty-five years and are supported by a lot of moneyed interests, the prospect of rolling back the clock to life without software patents is remote.

It will not be easy, but it's not a remote prospect. Slavery was an institution in the United States for centuries, and was supported by a lot of moneyed interests, but the 13th Amendment still eliminated it in 1865. In the case of software patents, we historically did not have them, and many other countries continue to not have them. There's a lot of evidence that they inhibit progress, eliminating the only constitutional justification for them. Perhaps more importantly, some of the "monied interests" are starting to lose money from software patents. So while the disaster of software patents won't disappear soon, there is hope longer term.

[ Reply to This | # ]

the good of sharing
Authored by: IMANAL_TOO on Monday, August 01 2011 @ 10:33 AM EDT
There is a nice piece in game theory on the good of sharing, by Brams and Taylor in 1995.

They later decided to patent the idea in 1999...



[ Reply to This | # ]

Google's New Patents: Some questions
Authored by: Anonymous on Monday, August 01 2011 @ 10:58 AM EDT

How can it be too late to use these new patents against Oracle?

If they can not use them in the present suit, they can file another suit and at
least double Oracle's and their own costs of suit. It also puts more risk out
their for Oracle. There are probably some database patents.

Why would the quality of patents matter? As long as you can go to court with
the USPTO imprimatur, eager members of the patent bar, blind justice, well-paid
experts, and a jury vetted of all knowledge, a troll or corporate defendant has
a better than even chance.



[ Reply to This | # ]

Google's New Patents
Authored by: Anonymous on Monday, August 01 2011 @ 11:39 AM EDT
Okay, I am unable not to post this here:
[you may know this already, if so, sorry, if not, please read these.]
for reasons why all software patents should be eliminated, see
EndSoftPatents' (ESP) Resources page
ESP's Arguments against software patents page
If you're an economist:
Their Resources for Economists page
If you're a lawyer:
Their Resources for Lawyers page

[ Reply to This | # ]

Summary Judgement
Authored by: kawabago on Monday, August 01 2011 @ 02:18 PM EDT
I don't understand why someone doesn't move for summary judgment due to
unpatentable subject matter. Google has patents on it's own software but it
doesn't really need them. Information businesses must constantly innovate to
stay current and they must do it faster than the patent office moves. If all
software patents and Google's software patent legal department suddenly
disappeared, the company would be much better off. Of course, maybe that's
precisely why we aren't seeing that tactic. It doesn't serve the lawyer's

[ Reply to This | # ]

Google's Possible Interest - IBM & JAVA
Authored by: sproggit on Monday, August 01 2011 @ 04:10 PM EDT
Disclaimer: the following was relayed to me by a lecturer holding a course into
JAVA programming for Orbix in a CORBA workshop, about 9-10 years ago... I have
looked for corroborative evidence of what follows, and if/when I find some, I'll
post it as replies.

IBM have been a strong advocate and user of JAVA for years now. When they very
first decided to become involved in the language, their first decision was:
which IBM platform should take the first port of the JAVA language? They chose
the iSeries platform (then known as the AS/400) because it was an OO (Object
Oriented) implemented OS...

IBM wrote their first port of the JAVA language by following the language design
specification, which they obtained from the web site. In the
process of their development of the language, IBM found numerous ways to achieve
significant performance enhancements to the reference implementation.

It was relayed to me (and there is some circumstantial evidence to support this)
that Sun's release 1.4 of the language - which included performance enhancements
from a number of improvements, such as better garbage collection - came at least
in part thanks to suggestions made by IBM.

The explanation I was given was that IBM, well versed in the development and
refinement of an Object-Oriented environment thanks to their work with OS/400,
took that skill and applied it to the JAVA specification. Because IBM "took
the long view" they knew that their corporate customers wanted to run JAVA
(big clients were excited by the concept of "run everywhere" promised
by the JVM) and IBM thus wanted to offer the language on all their hardware...


If we suppose that there is a kernel or a grain of truth in the fact that IBM
were even partially involved in the development and enhancement of JAVA's core
underlying architecture, then [ and we have to acknowledge that this is wild
speculation ] do you suppose that Google might be interested in obtaining some
of the intellectual property rights to components fundamental to the operation
of JAVA?

My utterly useless understanding of patent (IP) law suggests that this might be
fraught with dangers - not least estoppel - but, armed with that intellectual
property, Google have a much stronger bargaining position to take with Oracle.

What potential disclaimers would exist here, though?

For a start, we'd have to assume that IBM chose not to assert their software
patents against Sun, back in the day, because they saw more benefit from joining
the JAVA bandwagon that from attacking it. So perhaps they had these patents all
along, and just chose not to weaponise them.

Next, even presuming that my wild speculation is correct and that IBM sold and
Google purchased patents relating to JAVA, what good does that do Google now? In
the eyes of the law, does this give them some modicum of a defense? Can they go
to court and say, "We have this patent, registered to Google, which clearly
predates the Intellectual Property identified by Oracle and which clearly
references the claims being disputed here?

I have no way of knowing...

What I do know is that IBM know an awful lot about the inner workings of JAVA,
and hence it's intellectual property. I also know that IBM were deeply familiar
with the complexity of large OO environments (courtesy OS/400) *way* before

I'd be interested to know if anyone else can help me fill in the gaps here...

[ Reply to This | # ]

Only 2400 patents in total?
Authored by: Anonymous on Monday, August 01 2011 @ 05:47 PM EDT
Does the monster-size company called Google indeed just have 2400 patents? That
isn't much.

The Nortel patent sales was about 6000 patents. And Nortel was a smaller player
in the telecommunications field. Google doesn't look like a player with only
2400 patents.

[ Reply to This | # ]

More Likely for Apple and Microsoft than Oracle
Authored by: Anonymous on Monday, August 01 2011 @ 08:02 PM EDT

These patents are more likely for defence against Apple and Microsoft than for use against Oracle. Oracle simply wants some money. Apple and Microsoft would like to squeeze Google out of the mobile market altogether.

Viewed in that light, the fact that these patents include hardware makes more sense. If Apple or Microsoft use patents to try to attack Android licensees, Google could return the strike against the iPhone or Nokia/Win phones (when they come on the market next year). Google could also strike against Microsoft's XBox and Kinect hardware (or Apple's other hardware).

Ultimately, the best result for Google would probably be a cross-licensing deal with Apple, Microsoft, Nokia, and RIM which neutralizes everyone's patent portfolio. Google has to have something to take to the table though.

I expect Microsoft to not make their main attack against Google until Nokia's Win-phones are ready for the market. Microsoft could use that event to disrupt the market by trying to block the importation of Android phones to the US market, thereby opening a window of opportunity for Nokia. If Google could counter-strike against Nokia, then Microsoft is less likely to try (because Nokia would be very unhappy). This would also work if Nokia tried to make a patent attack directly.

Overall, Oracle is more of a nuisance than a threat. Google can stall and whittle down the claims while Android becomes firmly established. In the worst case, Google has to give Oracle a big stack of money. But, Google has a big stack of money. With Android firmly established in the market in the #1 or #2 position, Google could introduce a new programming language which avoids Oracle's patents and developers could switch to it over the course of a few years. Compatibility with existing phone development environments (Java) was a big advantage when Android was new. With Android being so dominant in the market now however, that doesn't matter so much as Android will be a primary development target for smart phone software.

Microsoft however, would like to take over Android's place in the mobile market and then leverage that to control e-mail, search, and other related markets which are core to Google's business. So, I suspect that Google has their eye more on the bigger threat.

[ Reply to This | # ]

Google's New Patents
Authored by: eldakka on Monday, August 01 2011 @ 08:59 PM EDT
Oracle is also now a hardware company.

Therefore patents regarding hardware, chips etc could be used against Oracle's

[ Reply to This | # ]

Google's New Patents
Authored by: Anonymous on Tuesday, August 02 2011 @ 06:58 AM EDT
I think it is significant that no small or medium Linux distribution was ever
really able to create a serious threat for the Microsoft monopoly on the desk

Now again, the financial resources of Google could succeed in countering the use
of patents to block competition. And that could be well valid for other
anti-competitive strategies.

You may think that for just sharing things you do not need a lot of money, but
apparently with this commercial and legal system this is not yet true.

An other conclusion could be that still more cooperation is needed to create a
bigger and powerful party. Look how Microsoft is using patents to split things
up, to approach individual parties (with a no disclosure demand).

My favorite would be the bigger distributions working together to create a
common OEM version of Linux. With a new, commercial name. Supported by a common
helpdesk. Followed by a political action to "force" OEM's to offer
this as an option. (In reality to protect OEM's if they offer that option.) Or
come out with own hardware. By the next upgrade, the user would have the choice
between the different participating distributions.

[ Reply to This | # ]

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