On Friday, August 27, 2010, Interval Research Corporation brought a patent infringement lawsuit against a who’s who of tech companies in the United States District Court for the Western District of Washington at Seattle, specifically suing AOL, Inc., Apple, Inc., eBay, Inc., Facebook, Inc., Google Inc., Netflix, Inc., Office Depot, Inc., OfficeMax Inc., Staples, Inc., Yahoo! Inc. and YouTube, LLC. Conspicuously missing from the target list was Microsoft Corporation, the company that Paul Allen, which is the co-founder of Interval Research, co-founded with Bill Gates. Many in the technology sector are wondering what Paul Allen is doing and why he is bringing this lawsuit, which to me seems rather naive. As discussed more fully below, it seems to me that Mr. Allen is attempting to enter the deep, dark world of patent trolls. The tell-tale sign being a complaint without any substantive information and naked recitation of a variety of patents that have “one or more” unspecified claims being infringed for unspecified reasons.
The history of Interval Research dates back to 1992 when Paul Allen and David Liddle co-founded the company to perform advanced research and development in the areas of information systems, communications, and computer science. Allen served as Interval Research’s chairman and was one of the earliest pioneers of personal computer software, co-founding Microsoft with Bill Gates in 1975 and later founding Vulcan Ventures in 1986. According to the complaint Allen, Liddle and a handful of scientists and inventors evolved Interval Research into a preeminent technology firm, but one that apparently did not have staying power. CNET reports that Interval Research, despite its proclaimed “preeminent technology” status, is no longer in business. See Paul Allen sues Apple, Google over patents.
The complaint alleges infringement of United States Patent Nos. 6,263,507, 6,034,652, 6,788,314 and 6,757,682. I would love to be able to provide information and detail as to the theory of infringement, but virtually none was provided in the complaint, hence my characterization above suggesting that perhaps Paul Allen has decided to become a patent troll of the first magnitude. This type of complaint by ambush is fairly typical, particularly with patent trolls. Of course, there may be real infringement here and Allen et al may not really be patent trolls, but the complete and utter lack of information in the complaint is troubling, although it has continually become the modus operandi in the patent infringement litigation world.
I go back and forth on my feelings regarding patent trolls and those that they sue. What can be said about patent trolls with certainty is that they have a patent right that is entitled to be enforced. What can be said about those that lose to patent trolls is that they were infringing those rights and were, as a result, nothing more than a tortfeasor. But who is the good guy and who is the bad guy? The truth really lies in between with both parties typically being shades of gray. Patent trolls have rights, but principles of equity and fairness demand that claims of infringement be made with more specificity than “here is my patent number and you are infringing one or more claims.” Complaints are supposed to be informing and such a nebulous statement without any statement of fact or even statement of belief hardly satisfies the defendants’ rights to know what they are being charged with. On the other hand, it is hard to get worked up about this injustice because in so many of these cases where the big-tech companies complain about patent trolls they wind up losing, which means they were infringing. So no one ever has clean hands; nor are they wearing white hats.
But is Allen really a patent troll? Who knows for sure, time will tell I suppose, but color me cynical about Interval Research’s decision to sue all major tech players other than Microsoft, the company that Allen co-founded with Gates.
But the complaint must have at least some information about a theory, right? Well, I suppose you could say there is at least the vaguest of vague statements that could point in a direction. For example, the first Cause of Action relates to infringement of US Patent No. 6,263,507. Paragraph 20 explains that the invention is titled “Browser for Use in Navigating a Body of Information, With Particular Application to Browsing Information Represented By Audiovisual Data.” Paragraph 20 goes on to explain that Interval Research is the assignee of the patent and holds all rights to the patent. Then paragraph 21 states:
21. Defendant AOL has infringed and continues to infringe one or more claims of the ’507 patent. AOL is liable for infringing the ’507 patent under 35 U.S.C. § 271 by making and using websites, hardware, and software to categorize, compare, and display segments of a body of information as claimed in the patent.
Paragraphs 22 (re: Apple), 23 (re: eBay), 24 (re: Google), 25 (re: Netflix), 26 (re: Office Depot), 27 (re: OfficeMax), 28 (re: Staples), 29 (re: Yahoo) and 30 (re: YouTube) are all identical, except for the insertion of the relevant company name in place of “AOL.” Paragraph 31 then goes on to state:
31. Defendants AOL, Apple, eBay, Google, Netflix, Office Depot, OfficeMax, Staples, Yahoo, and YouTube’s acts of infringement have caused damage to Interval, and Interval is entitled to recover from Defendants the damages sustained by Interval as a result of Defendants’ wrongful acts in an amount subject to proof at trial. Defendants’ infringement of Interval’s exclusive rights under the ‘507 patent will continue to damage Interval, causing irreparable harm for which there is no adequate remedy at law, unless enjoined by this Court. Interval reserves the right to allege, after discovery, that Defendants’ infringement is willful and deliberate, entitling Interval to increased damages under 35 U.S.C. § 284 and to attorney’s fees and costs incurred in prosecuting this action under 35 U.S.C. § 285.
So the theory of liability relative to the ‘507 patent is seemingly built upon the title of the patent and the conclusory assertion that “by making and using websites, hardware, and software to categorize, compare, and display segments of a body of information” the patent is infringed. The other causes of action relating to the other three patents all follow this same nebulous non-informing pattern.
Thank goodness that proving patent infringement is not so simple as saying “may patent relates to X and you appear to be doing X.” If it were that simple many hundreds of patent litigators would be out of work. Of course it is not that easy, and filing a lawsuit with such little information ought not to be allowed either. If I were one of the defendants I would file a motion to dismiss for failure to state a claim because how in the world is this complaint supposed to put the defendants on any kind of notice?
In a direct about-face, allow me to also say this: who can blame the attorneys for Allen’s Interval Research for filing a complaint like this? If you can initiate a lawsuit without any information to actually inform the defendants as to what they are doing that might be infringing then you might as well. If the Courts will allow you to file a complaint that says I think you are infringing but I’m not about to tell you how or why I think that; go figure it out yourself, then you might as well. So unless and until District Courts start tossing these cases and the United States Court of Appeals starts strictly following the requirements of the Federal Rules of Civil Procedure these types of complaints by ambush will only continue, and who can blame the plaintiffs? There is an enormous strategic advantage to keeping the defendants guessing and in the dark for as long as possible.