Groklaw - Another Patent Attack on Google with More Wild $$ Predictions ~pj

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Another Patent Attack on Google with More Wild $$ Predictions ~pj

Sunday, April 01 2012 @ 10:05 AM EDT

Remember when there were all those scary headlines about Oracle suing Google for $6 billion for alleged patent infringement? Did that preposterous fantasy come true?

Instead, Google, without even any counterclaims of patent infringement to fire back, got almost all of Oracle's asserted patents tossed out as invalid by the USPTO in reexaminations. There's one left standing and another that might be valid if Oracle can successfully appeal a preliminary finding of invalidity by the USPTO, with a grand total of damages estimates from the court's independent adviser being less than a million, after adjustments, if Oracle can prove infringement, a very, very big IF.

Congratulations, Oracle, for shooting yourself in the foot.

Now there are some new scary headlines, like this one, "Why Google Might Be Going to $0" this morning about how much money Google will have to pay because Google is being sued by Vringo, Vringo calling itself I/P Engine in the litigation, with predictions that Google will surely settle to avoid being valued at zero by the time Vringo is done with it.

Puh-lease.

And guess who the principals of this newly patent-infused company used to work for, according to the NextWeb:

Fresh Vringo CEO Andrew Perlman used to manage licensing deals with Apple, AT&T, YouTube, ZTE, Nokia and Disney at EMI Music Group and Classic Media. Vringo chairman Seth Siegel, meanwhile, represented companies like AT&T, Microsoft, Apple and Ford Motor Company in trademark licensing.
Furthermore, joining the freshly created company as Special Counsel is David L. Cohen, who was previously senior litigation counsel at Nokia.

Well, well. Nokia and Microsoft. Partners at law, so to speak. Is this another Microsoft/Nokia outsourced production? Remember when Barnes & Noble told us that it views Microsoft and Nokia's patent campaign as an antitrust violation, a deliberate campaign to destroy Android and maintain Microsoft's monopoly on the desktop and extend it to smartphones, with Nokia piggybacking with its patents for weapons and MOSAID being brought in to do some of the dirty work?

So when you read the scare headlines, remember this: Google is awesome at patent litigation. It tends to prevail. I told you that when Oracle first sued Google, and did it prove accurate? Just because folks want Google's money, it doesn't mean they will necessarily get it.

It isn't just Google being sued, by the way. It's AOL, Time Warner, Gannett, Target, and IAC Search & Media. It's a dispute about AdWords and AdSense. Here's the complaint [PDF]. Note the stupid patents attached as exhibits 1, 2, and the other exhibits, 3 and 4, if you are allowed to look at patents [all PDFs].

Here's Google's First Amended Answer with Counterclaims [PDF], and with regard to the two patents asserted against Google in the beginning, it says: "Google denies incorporating any technology claimed by the '420 and '664 patents into any of its products....Google denies that Google products use the Lang/Kosak Relevance Filtering Technology." Google also says that the patents are invalid: "The claims of the I/P Engine patents are invalid for failure to satisfy one or more conditions of patentability set forth in Title 35 of the United States Code, including, but not limited to, 35 U.S.C. §§ 101, 102, 103 and/or 112." And it also says "Plaintiff's ability to recover damages is limited by the provisions of 35 U.S.C. §§ 286-287." That's the marking/notice requirement, which we've seen Google use effectively in the Oracle litigation.

And here's [PDF] Google letting the court know that it thinks the plaintiff is hiding the ball, trying to mask the true date of the patents, with the effect that Google can't know when to look for prior art. Here's the opposition [PDF]. Google eventually filed a motion [PDF] to compel the plaintiff to supplement its infringement contentions.

Vringo just merged in mid-March with the owner of the Lycos patents, which explains the sudden FUD, as the NextWeb explains:

Video ringtones and mobile applications development company Vringo, listed on NASDAQ, is merging with Innovate/Protect to grow its intellectual property portfolio....
The real reason is that Vringo hasn’t been performing well on the stock market since its 2010 IPO, and that trying to squeeze money from better-performing companies by threatening IP warfare based on software patents that should have never been granted looks like a more lucrative business to them.
For your information: you’ve likely never heard about Innovate/Protect because the company doesn’t actually build or sell things. Innovate/Protect is the owner of patent assets acquired from Lycos, a now-irrelevant search engine that was a big deal in the mid-late 1990s. In fact, Innovate/Protect’s chief executive officer, Andrew K. Lang, is the former CTO of Lycos and will serve in that role again at the combined entity after the merger transaction completes....
Guess what will likely happen next? That’s right, what we’ve all been waiting for: even more lawsuits that might stifle real innovation from real companies.
Sigh.

So, two companies that can't cut the mustard want all of Google's money for a couple of patents that shouldn't have issued in the first place. Software is mathematics. Mathematics is supposed to be unpatentable subject matter. Among other issues with these patents.

This Mr. Lang is the very Ken Lang who stars in the headlined article on Tech Crunch, "Why Google Might Be Going to $0", by James Altucher, an investor in Vringo:

I’ve read the patent case. I watched Hal Varian’s video. Also look at this link on Google’s site where they describe their algorithm. Compare with the patent claim. I have a screenshot if they decide to take it down. $67 billion in revenues from this patent. Imagine: double that in the next ten years. Imagine: triple damages.
Vringo will have an $80 million market capitalization post their merger with I/P. NTP won $600 million from RIMM using the same lawyer. RIMM’s revenues are a drop in the bucket compared to Google. And compared to 1000s of Google’s customers who will be embarrassed when the lawyer shows up at their door also. That’s why I made my investment accordingly. Is Google going to take the risk this happens?
I doubt it.
You can think to yourself: “ugh, patent trolls are disgusting”. But the protection of intellectual property is what America is built on. Smart people invent things. Then they get to protect the intellectual property on what they invents. Other companies can’t steal that technology. That’s why we have such a problem outsourcing to China and other countries where we are worried they might steal our intellectual property. Patents are the defense mechanism for capitalism.

So says folks like Microsoft. And they put their money where their mouth is. But what do *you* say? Is this acceptable to you? Seriously. Or not. Here's Seth Godwin's funny take today on Monetization and Fairness.

Zero, the man says. How could Google's value be entirely from two software patents? I mean, do people visit Google because they are yearning to see ads? Or is there *other* value that this company created that other companies, whose executives can't build into successful companies like Google, hope to dip into for some free money? Or is this not even about money? What if it's an anticompetitive move? Now what do you think of it?

I wish it was possible to sue the USPTO for all the damage they created by issuing patents so recklessly. There is no penalty to them, other than reputational; but they've created a tax on success, because now the successful companies must defend against trolls with a handful of stupid patents, some of which companies are being sent out as proxies for others, who'd rather not be clearly highlighted in public, I suppose.

Well, hopefully the Antitrust Division at the Department of Justice will eventually take a look, a deep look, at all the coincidental or otherwise connections and take a stand to protect the US economy from this drain on innovation. Someone needs to fix the patent system before these software patent trolls destroy every successful US company by sucking its blood dry. Software and patents need to get a divorce.

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Authored by: davecb on Sunday, April 01 2012 @ 10:12 AM EDT

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