Unfortunately, the modest procedural changes being considered in the America Invents Act won’t come close to preventing the kind of abusive litigation that’s now plaguing Android. So Google should consider going further and endorse software patent abolition. Obviously, I’d like them to do so because I think it’s the right policy on the merits. But it would also be a savvy business move.

But there’s a larger group of critics and detractors who call out Google for effectively being hypocritical — John Gruber for example:

So if Google had acquired the rights to these patents, that would have been OK. But when others acquired them, it’s a “hostile, organized campaign”. It’s OK for Google to undermine Microsoft’s for-pay OS licensing business by giving Android away for free, but it’s not OK for Microsoft to undermine Google’s attempts to give away for free an OS that violates patents belonging to Microsoft?

Both positions are right; patent law is in need of reform — and perhaps radical reform — to prevent abuse. But Google is also being opportunistic and inconsistent in its positions, which I suppose is to be expected of corporations.

Specifically Google points (in part) to the Novell patent portfolio to support its inflammatory claim of “a hostile, organized campaign” against the company by rivals. However, Microsoft General Counsel Brad Smith contradicts the implied assertion that Microsoft sought the Novell patents to keep them out of Google’s hands.

He earlier tweeted that Microsoft tried to cooperate and jointly bid with Google for the Novell patents, which Google declined to do:

Further evidence of what Smith said came in the form of another tweet from Microsoft’s Frank Shaw (first pointed out by TechCrunch), which included a polite email exchange between Google general counsel Kent Walker and Microsoft counsel Smith in which Walker said that Google didn’t want to bid with Microsoft for Novell’s patents but was “open to discussing other similar opportunities in the future”:

What looked like an opportunity for Google to present itself as “the good guy” and point to others’ apparent “anti-competitive” behavior — diverting attention from the various investigations against Mountain View — has backfired and turned into a public relations blunder, especially given the Smith and Shaw tweets above.

To save face and rise above the “he said/she said” noise Google should use this episode, as Forbes’ Lee suggests, as an opportunity to publicly advocate for significant but thoughtful patent reform.

Postscript: Below is Google’s update of its original post responding to the Smith and Shaw statements:

It’s not surprising that Microsoft would want to divert attention by pushing a false “gotcha!” while failing to address the substance of the issues we raised. If you think about it, it’s obvious why we turned down Microsoft’s offer. Microsoft’s objective has been to keep from Google and Android device-makers any patents that might be used to defend against their attacks. A joint acquisition of the Novell patents that gave all parties a license would have eliminated any protection these patents could offer to Android against attacks from Microsoft and its bidding partners. Making sure that we would be unable to assert these patents to defend Android — and having us pay for the privilege — must have seemed like an ingenious strategy to them. We didn’t fall for it.

Ultimately, the U.S. Department of Justice intervened, forcing Microsoft to sell the patents it bought and demanding that the winning group (Microsoft, Oracle, Apple, EMC) give a license to the open-source community, changes the DoJ said were “necessary to protect competition and innovation in the open source software community.” This only reaffirms our point: Our competitors are waging a patent war on Android and working together to keep us from getting patents that would help balance the scales.

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Google’s Chief Legal Officer David Drummond has lashed out at rivals Apple, Microsoft, Oracle and unnamed others for waging what he says is “a hostile, organized campaign against Android,” using “bogus patents.”

Drummond asserts that Google’s rivals have joined together in an “anti-competitive” cabal of sorts that uses patent law almost as a pretext to attempt to “strangle” Android. (The phrase “anti-competitive” is self-consciously used four times in his post.) Drummond contends that Google’s rivals are threatened by or unable to compete with Android’s momentum (citing Android’s 550,000 daily activations) and have resorted to this nefarious strategy to make Android more expensive for hardware makers and consumers.

Making Android More Expensive

Raising the cost hardware manufacturers must pay for Android is explicitly what Microsoft is trying to do with its patent-licensing demands (vs. HTC and Samsung). Steve Ballmer has said so very directly. Microsoft is also seeking to generate revenue from Android, which it is starting to do.

Oracle is certainly seeking licensing revenue but probably not trying to inflate the cost of Android. And Apple is probably trying to do neither. It’s more likely that Apple genuinely believes its IP has been infringed.

Apple has repeatedly said that Android handset makers have ripped-off the iPhone’s design and other key features. Apple’s lawsuit against Samsung, the top Android OEM, argues that the Korean company “slavishly copied” the iPhone and iPad’s designs:

Rather than innovate and develop its own technology and a unique Samsung style for its smart phone products and computer tablets, Samsung chose to copy Apple’s technology, user interface and innovative style in these infringing products…

Google says it captures user location data only on an opt-in, consensual basis.

Where Are the Damages?

As a former lawyer who did a fair amount of plaintiff-side litigation in my past I’m sympathetic to the consumer class action and believe that it has been a valuable tool to police corporate misconduct, which regulators have often been unwilling to do themselves. However class actions have also been abused by opportunistic lawyers, especially in the tech industry and especially of late.

The Apple and Google suits fall into that category. For example, where are the damages?

Arguably nobody has suffered any actual harm as a result of having location identified by their smartphones — at this point. Adverse PR has already brought about a policy change at Apple; and Google will probably change its disclosure rules and policy around location data collection and retention for smartphones as well.

The increasing frequency of opportunistic and dubious class actions is undoubtedly what motivated the US Supreme Court’s conservative majority, at least in part, to find in favor of AT&T in a case called AT&T Mobility v. Concepcion. The majority ruled that The Federal Arbitration Act pre-empted a state rule (CA here) that allowed consumers to avoid contracts containing waivers of class action rights.

What this decision probably means as a practical matter is that every contract, including online TOS agreements, will now contain some sort of waiver of class action rights. That will probably preclude most if not all future consumer class action cases, such as those filed against Apple and Google. It’s a major decision and an unfortunate outcome for consumers. It could equally kill the actual Apple-Google location cases if there are similar arbitration clauses buried somewhere in the fine print.

Internal Emails Show Importance of Location Data to Google

In another lawsuit involving location against Google, Skyhook Wireless v Google, there was disclosure of internal Google emails showing the importance of location data to Google. Emails exchanged between now-CEO Larry Page and Google’s Steve Lee reveal that Google’s ability to capture location data from Android handsets was crucial to Google’s “mobile-product strategy.” Here’s the specific language from an article in the Wall Street Journal:

“I cannot stress enough how important Google’s Wi-Fi location database is to our Android and mobile-product strategy,” wrote Steve Lee, the Google product manager, in an email that emerged in a suit filed against Google by Skyhook Wireless Inc. in a Massachusetts court. The message was a response to an emailed question last May by Larry Page, who is now Google’s chief executive.

The email exchange came after Motorola’s decision to use Skyhook to provide location data on Android phones rather than Google. Subsequently Motorola returned to using Google’s location database and tools. Skyhook claims that Google interfered with its relationship with Motorola; the complaint alleges:

Google wielded its control over the Android operating system, as well as other Google mobile applications such as Google Maps, to force device manufacturers to use its technology rather than that of Skyhook, to terminate contractual obligations with Skyhook, and to otherwise force device manufacturers to sacrifice superior end user experience with Skyhook by threatening directly or indirectly to deny timely and equal access to evolving versions of the Android operating system and other Google mobile applications.

As I wrote last October:

After abandoning WiFi data collection Google may need to more heavily depend on deriving location data from the handset itself. I could be quite wrong but that would theoretically be precluded by an alternative provider of location (i.e., Skyhook on Motorola Droid and other Android handsets). Accordingly it may now be very strategic for Google to provide core location on Android handsets, thus motivating the company to guard those relationships more closely and perhaps resulting in the outcomes described in the Skyhook complaint.

The emails cited by the Wall Street Journal will form core evidence that Skyhook will use to argue Google was motivated to thwart its relationship with Motorola (and another unnamed OEM, which is probably Samsung) to preserve its access to location data from Android handsets. If Skyhook’s case is really strong — there are also patent infringement claims — Google may wind up buying the company rather than paying damages.

FTC Readies Broad Google Investigation

The final legal headache, for the time being, comes as the FTC is said to be readying a formal probe into Google’s dominance of the search market. According to Bloomberg:

The U.S. Federal Trade Commission is preparing an investigation of Google Inc.’s dominance of the Internet search industry by alerting high-tech companies to gather information for the probe, three people familiar with the matter said. The agency told the companies that it plans to issue so- called civil investigative demands for the information, said the people, who requested anonymity because the FTC hasn’t made the matter public. The demands are similar to subpoenas.

The FTC’s investigation comes amid calls in Congress for inquiries into Google’s dominance of search. Texas is already engaged in a formal antitrust investigation and several other state attorneys general are considering similar moves.

The investigation hasn’t been formally announced and any outcome is far from certain. However the probable investigation raises all the familiar questions surrounding what to do if Google is found to be in violation of antitrust rules. The FTC doesn’t really want to get involved in regulating the SERP — nor should it. In addition, with the combined Bing-Yahoo share at roughly 30 percent (and growing), Google will argue that the market is competitive.

The European Commission is right now involved in a similar antitrust investigation. The outcome there and any remedy issued could have an impact on the FTC action potentially.

Google’s size and success seem to be giving rise to investigations and lawsuits at every turn, in the US, Europe and even Asia. As an outsider, the only context in which I’ve seen Google do anything that appears anti-competitive is in the Skyhook case. However the allegations there remain to be proven.

Walker Digital, a private R&D lab that created and launched Priceline.com in the late 1990s, is suing Google for allegedly violating four of the company’s patents. The lawsuit, which asks the court for a jury trial, seeks unspecified damages and a permanent injunction.

Google Offers began taking sign-ups yesterday in three U.S. locales and technically hasn’t even launched yet. The Walker Digital lawsuit was filed in a US District Court last night.

Earlier this month, the company filed 15 similar suits against more than 100 defendants including Google, Facebook, Microsoft, Groupon, Amazon, eBay and Apple. Walker Digital also sued Facebook last year over its “friending” technology, according to paidContent.

Here’s a copy of the newest suit against Google Offers, courtesy of the Gametime IP blog.

Walker Digital v Google

Bedrock Computer Technologies was awarded $5 million for Google infringing on their patent (U.S. Patent No. 5,893,120) named “Methods and apparatus for information storage and retrieval using a hashing technique with external chaining and on-the-fly removal of expired data.”

So besides for Google having to pay the $5 million, which is not much to Google, they may have to modify the current kernels of Linux used on their servers and maybe even the Android mobile operating system.

The decision was made by the court on April 15, 2011 and was published electronically yesterday. Below is an embed of the decision.

Google told The Register:

Google will continue to defend against attacks like this one on the open source community. The recent explosion in patent litigation is turning the world’s information highway into a toll road, forcing companies to spend millions and millions of dollars defending old, questionable patent claims, and wasting resources that would be much better spent investing in new technologies for users and creating jobs.

Bedrock Computer Technologies didn’t only sue Google in 2009, they sued Softlayer Technologies, CitiWare Technology Solutions, Yahoo, MySpace, Amazon.com, PayPal, Match.com, AOL and the CME Group. But Google’s suit was the first to go to trial.

According to the court, Google infringed two different points within the patent. First being information storage and retrieval system comprising of:

• a linked list to store and provide access to records stored in a memory of the system, at least some of the records automatically expiring
• a record search means utilizing a search key to access the linked list
• the record search means including a means for identifying and removing at least some of the expired ones of the records from the linked list when the linked list is accessed
• a means – utilizing the record search means – for accessing the linked list and, at the same time, removing at least some of the expired ones of the records in the linked list

The second was “information storage and retrieval system according to claim 1 further including means for dynamically determining maximum number for the record search means to remove in the accessed linked list of records,” according to the FOSS blog.

Here is the verdict:

11-04-15 Verdict Form Bedrock v. Google

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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 . . . 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 . . .

As a “stalking-horse bid” it represents the price floor. The patents might ultimately go for two or three times that amount.

Other companies potentially interested in the Nortel patents include BlackBerry maker RIM, chip-maker Qualcomm, Ericsson and RPX Corp, which is an organization that acquires patents and licenses them to members on highly favorable terms in exchange for annual fees. Members include Microsoft and Intel, among others. There are also probably other bidders out there.

Nortel has more than 5,300 awarded patents in the US and other countries, some of which cover key wireless and enterprise technologies. It’s quite a trove.

The Google calculation here is pay now to avoid exposure in potential future litigation. Other companies may have similar concerns but may also be interested in licensing revenue. How they value the patents could be different or greater than the value Google is placing on them.

Stock image from Shutterstock, used under license

Originally filed in October 2004 and awarded this past February, the patent is for a system that uses social connections and clicks within the network to determine search-ranking relevance.  A piece in BNet calls the Facebook patent “curated search.” However we might as well call it a patent on “social search.” (See update below.)

Here’s what the abstract says:

Search results, including sponsored links and algorithmic search results, are generated in response to a query, and are marked based on frequency of clicks on the search results by members of social network who are within a predetermined degree of separation from the member who submitted the query. The markers are visual tags and comprise either a text string or an image.

Sure, the patent system is totally screwed up and patents are mostly used defensively against litigants. But let’s take this seriously for a moment.

The confusing name of patent 7,890,501 is “Visual tags for search results generated from social network information.” The BNet article argues the implications are “quite broad” and I agree.

Patents are often impossible to read let alone understand. However another excerpt from the patent filing seems to lay it all out pretty clearly. First here’s Facebook’s description of the way search is ranked now:

A key metric in evaluating the performance of search engines is relevance of the search results. Search engine developers are always striving to deliver search results that are relevant to the search query being processed. Consistent with this goal, there have been attempts to rank search results based on a number of different factors. One of the more popular ways to rank search results involves analyzing the location and frequency of keywords on a web page. Another frequently used technique is analyzing how web pages link to each other. A web page gets a ranking boost based on the number of other web pages that are linked to it. Click-through rates of search results are analyzed in some search engines. The general rule is: the higher the click-through rate, the higher the ranking.

Now here’s Facebook’s social search ranking methodology (partly repeating the excerpt above):

The invention provides still another technique to improve the relevance of search results. According to an embodiment of the invention, search results, including sponsored links and algorithmic search results, are generated in response to a query, and are ranked based on the frequency of clicks on the search results by members of social network who are within a predetermined degree of separation from the member who submitted the query. The predetermined degree of separation is equal to one if the click activities of only the friends of the member who submitted the query are to be examined.

A search result may also be marked based on its click history. In one embodiment, a search result is marked with an image or a text string if there was a single click on the search result by a friend of the member who submitted the query. In other embodiments, the frequency of clicks by members of social network who are within a predetermined degree of separation from the member who submitted the query is examined. If such frequency exceeds a minimum value, the associated search result is marked with an image or a text string.

Accordingly, Facebook’s patent factors in clicks and degrees of connection within the network to determine relevance.

Facebook was launched in February 2004. As mentioned, this patent was filed in October of that year. It would thus appear that Facebook has been thinking about search from the very beginning.

(Image from Facebook patent application)

Postscript: What’s not entirely clear, upon second thought, is whether activity “off SERP” (e.g., Twitter referrals or Facebook Likes) would fall within the coverage of this patent. This patent might implicate that sort of data — clearly the network exists outside the search engine — but Facebook may have been more narrowly contemplating activity (“clicks”) happening on or within the SERP. Facebook as a “platform” and the Like button were probably unforeseeable in October 2004.

Postscript2: Bill Slawski points out below in the comments, and I’ve since independently found this too, that the patent originated with Friendster and Facebook acquired it in an estimated $40 million deal last August when Friendster was sold. There were a wide range of patents in Friendster’s IP portfolio including, apparently, this one.

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There are a number of seemingly conflicting or contradictory local and local-mobile patents that have been issued over the past several years. Some of these patents were issued to small companies and some are owned or were acquired by giants like Google and Microsoft. Now Redmond and Mountain View have joined forces to fight a common foe: a small company in Texas that holds a potentially sweeping mapping patent.

The Texas company GeoTag, Inc. has filed infringement suites against hundreds of companies that are using Google or Bing Maps — in many cases to show store locations. The patent was issued in 1999 and is entitled “Internet organizer for accessing geographically and topically based information.”

The patent, like so many, is full of expansive and vague language that would seem to implicate almost everything that is “geo” online. At a minimum GeoTag’s position appears to be that the patent covers the display of any online (and presumably mobile) information on a map.

According to Bloomberg:

GeoTag has filed at least eight lawsuits in federal court in Marshall, Texas, against 300 companies. Some companies are demanding that Microsoft and Google defend them and cover any losses, according to the complaint filed yesterday.

Google and Microsoft are seeking a judgment that their products and technologies don’t infringe the patent or that the patent is invalid because there was conflicting prior art. If that finding were to be made by a court it would also invalidate the underlying lawsuits against the many companies GeoTag is going after.

According to the article the patent has been sold several times in the past. The current owner, GeoTag, is planning in IPO. This patent and its potential enforceability is a key to perception of the company’s future value among investors.

Allen first filed the lawsuit in late August, but it was dismissed earlier this month as being too vague. The district court judge gave Allen until today, December 28, to refile.

According to the Seattle Times, the new lawsuit explains in more detail how the eleven companies allegedly infringed on Allen’s patents and includes several screenshots showing where Allen’s company believes the defendants are infringing on its patents.

There’s more discussion on Techmeme.

(image courtesy Andrew Feinberg via Creative Commons)

Judge Marsha Pechman agreed with both Google and AOL, who said that Allen’s lawsuit was too vague. Allen’s patent infringement complaint “failed to identify the infringing products or devices with any specificity,” Pechman wrote in her ruling. You can read the full decision on Groklaw.

Allen has until December 28th to refile the case.

He first filed the lawsuit in late August, accusing 11 companies — including Google, Yahoo, AOL, and Facebook — of infringing on technology developed a decade ago by Interval Research Corp., a technology lab that Allen owned between 1992 and 2000.

There’s more discussion on Techmeme.