But for us it is time for another check-in with Google’s recent innovations here on IPWatchdog’s Companies We Follow series, and software inventions from this major technology developer are abounding. We found a couple of patent applications involving technologies which present topics of interest to computing device users, including methods for activity planning to see a concert or an event. Another patent application describes a method of providing insight from local experts about an unknown destination. We were also intrigued by a method of presenting digital advertisements to individuals which is designed to encourage retail sales at brick and mortar stores.
One of the real problems with the debate over patent litigation abuse is that it hasn’t focused on litigation abuse at all. Instead, the debate has focused on attempts to characterize patent owners with pejorative labels, such as calling anyone who has the audacity to seek to enforce their rights a “patent troll.” Unfortunately, the term “patent troll” has evolved to mean “anyone who sues me alleging patent infringement.” This has lead the media, the public and Members of Congress to incorrectly believe that there is a “patent troll problem,” which has influenced decision-makers all the way from Capitol Hill to the United States Supreme Court, who increasingly seems to be deciding patent cases with one eye firmly on what is a completely non-existent problem.
You have probably heard the narrative start something like this: there is an explosion of patent litigation. The objective reality, however, is that there has not been an explosion of patent litigation. The Government Accountability Office, after an exhaustive review of patent litigation, concluded that there was no patent litigation crisis. The same GAO report also found that 80% of the patent lawsuits filed are brought by operating companies suing other operating companies. Thus, those who profess there to be rampant problems associated with patent trolls and non-practicing entities suing for patent infringement are simply telling a tale that the factual data doesn’t support.
More recently Lex Machina has come forward with some eye opening statistics as well. A recent report from Lex Machina concludes: “Plaintiffs filed 329 new federal patent cases in September 2014, a 40% decrease from the 549 cases filed in September 2013.” Indeed, if you dive deeper into the 2013 and 2014 statistics you see that through the first nine months of 2013 there were 4,548 patent infringement lawsuits filed, but during the first nine months of 2014 there were only 3,887 patent infringement lawsuits filed, which represents a 15% reduction in patent litigation in 2014 compared with 2013. Furthermore, in 7 of the 9 months during 2014 there have been fewer patent infringement lawsuits filed during 2014 than during 2013. The statistics and independent GAO report just do not support a narrative that proclaims there to be a run away problem with patent litigation run amok.
Gene Quinn at the AIPF Annual Meeting in Washington, DC, September 29, 2014.
Today I am going to talk about what I call the patent pendulum. When Todd Van Thomme and I originally started talking about what I would talk about today I said that there would undoubtedly be something that comes up at the last minute. I even joked that I might wind up talking about how the Supreme Court actually got the Alice decision right, surprising us all and saying once and for all that software is clearly patentable. We all know it didn’t turn out that way. So the title of my presentation today is this: Dark Days Ahead: The Patent Pendulum.
As you are probably all familiar, patent law never stays the same in the same spot. It is always swinging one or another, either swinging more towards stronger patent rights and the patent owner, or away from strong patent rights and away from the owner. It has been that way throughout history.
Normally what’s happened is that we’ve seen the pendulum swing over longer periods of time, like over decades, and then it’ll move away. For example the 1952 Patent Act was premised on the fact that Congress didn’t like the way the law was developing over the preceding years and wanted more things be patentable, hence the 1952 Patent Act did away with the flash of creative genius test. So things swung back toward a more patent friendly law, at least for a while. And then in the 1970s no courts ever saw a patent that actually had valid patent claims. This famously prompted Congress to create the Federal Circuit. Under the guidance of Chief Judge Markey and Judges like Giles Sutherland Rich and Pauline Newman, who is still on the court, the pendulum swings back toward the patent owner once again.
Yesterday the Partnership for American Innovation (PAI), which is comprised of Apple, DuPont, Ford, GE, IBM, Microsoft and Pfizer, submitted comments responsive to a request for public information published in the Federal Register back on July 29, 2014, titled Strategy for American Innovation. Some may recall that in February 2011, President Obama released a Strategy for American Innovation, which described the importance of innovation as a driver of U.S. economic growth and prosperity, and the critical role the government plays in supporting the innovation ecosystem. The Office of Science Technology Policy and the National Economic Council are now tasked with updating the document to create a revised Strategy for American Innovation.
One can hope that this group of venerable American innovators will be able to get through to decision makers who will be responsible for charting the new innovation and intellectual property strategy. Notably missing from the PAI, however, is Google, who will certainly have different views.
Google is known to be one of the primary advocates of watering down, if not outright destroying, the U.S. patent system. This is interesting because Google is a top 10 patenting company according to data from the United States Patent and Trademark Office for 2013. They have also spend tens of billions of dollars acquiring patent portfolios that now due to their lobbying efforts are practically worthless. Regardless of Google’s schizophrenic approach to patents, the arm of Google that seems to loathe patents and the U.S. patent system has particular influence in Washington, DC. Both current and former Google executives are known to have the ear of the White House, which is largely to blame for the substantial anti-patent sentiment flowing from the White House. Unfortunately, all of this suggests that whatever the new strategy for innovation will be it will be one that incorporates significant anti-patent positions support by Google.
Google is one of the stalwarts that we feature regularly on IPWatchdog’s Companies We Follow series, and our research into Google’s innovations always manage to unveil a great crop of unique inventions. The recently published patent applications and issued patents assigned to Google by the U.S. Patent and Trademark Office cover a vast field of innovation involving computing technologies, many of which improve systems of providing meaningful data to end users for various means.
A specialized type of content management system for brokering knowledge between experts and individuals who need various kinds of technical help is the focus of today’s featured patent application. Google is trying to protect a system for requesting know-how from an expert in return for virtual credits. Other patent applications have been filed to protect systems for better ranking of news stories as well as methods for providing contextual definitions of selected text within a document.
Google is a favorite among the corporations profiled here on IPWatchdog’s Companies We Follow series because of its development of interesting consumer technologies. As we check back in for our latest round with the company, we see that it hasn’t slowed its activities with the U.S. Patent and Trademark Office. We found an intriguing assortment of new technologies created by this company, especially those related to Google’s mobile device innovations.
The featured patent application for today highlights a novel system of using mobile devices to improve something millions of Americans do every day: order out for food. This Internet-based system of ordering enables more precise delivery, better estimation of arrival times as well as secure payments for food and other items. We also profile some patent applications pertaining to speech recognition technologies and online searches for flight itineraries.
SimpleAir, an inventor-owned technology licensing company, holds eight issued U.S. Patents and several pending patent applications in the areas of wireless content delivery, mobile applications, and push notifications. SimpleAir has licensed its inventions to many leading technology companies, including Apple. See also Apple, others settle with patent troll SimpleAir. Google decided not take a license and/or otherwise settle a patent infringement litigation brought by SimpleAir and now has been found to infringed one of SimpleAir’s patents.
A federal jury in the Eastern District of Texas returned a verdict on Saturday, January 18, 2014, following a week-long trial presided over by the Judge Rodney Gilstrap, finding that Google infringed SimpleAir’s U.S. Patent No. 7,035,914. The ‘914 patent covers a system and method for connecting on-line networks with on-line and off-line computers. The system provides for broadcast of up to the minute notification, which thereby provides an instant call to action for users who are provided with the ability to instantaneously retrieve further detailed information. The notification is wirelessly broadcast to wireless receiving devices attached to computing devices. The services accused of infringing the ‘914 patent were the Google Cloud Messaging (GCM) and Android Cloud to Device Messaging (C2DM) services. Those services are used by Google to process and send instant notifications for Android applications, such as Facebook, Twitter, and Gmail.
The jury was unable to reach a unanimous decision on the amount of damages to award for Google’s infringement. The damages issue will be decided by a separate jury in a second trial limited to the issue of damages. SimpleAir has announced that they will seek damages in excess of $125 million for Google’s infringement in the damages retrial.
Spherix Incorporated (NASDAQ: SPEX), a Tysons Corner, Virginia intellectual property monetization company, recently announced that it has entered into a series of agreements with Rockstar Consortium (US) LP in which Spherix Incorporated acquired over 100 patents and patent applications. The newly acquired patents cover among other things, numerous aspects of access, switching, routing, optical and voice communication network devices.
In addition to the 100 patents/application acquired will complement the Rockstar patents previously acquired by Spherix and will further support Rockstar’s current licensing efforts. Rockstar will also share usage information with Spherix for the transferred patents, and will assist Spherix in working with the patents’ inventors, to assist Spherix’s commercialization efforts.
With the enormous media focus on the so-called problem of patent trolls one might start to think that any patent owner can easily stand up to and take on industry giants to obtain lottery like winnings. Not so fast! The great irony is that if you want a larger entity to fold like a cheap suit and settle quickly you would be better off filing a frivolous patent infringement lawsuit using a dubious patent. You see, the great irony is this: Only when large entities get sued on completely frivolous patent claims do they settle right away. Now I’m not advocating that course of action, rather just observing the truth of the matter asserted.
On the other hand, if you have a strong patent that covers real technology, perhaps pioneering technology, and there are substantial damages, the tech giants you sue will vilify you as a patent troll in the media and do whatever they can to make sure that they never pay you a dime. This is particularly true when the small company is building upon a base technology already owned by one of those technology giants.
Many large companies are happy to pay nuisance value on frivolous claims, but they are never going to pay meritorious claims if they can avoid it using any and all techniques and procedural machinations. The reality that frivolous claims get settled and meritorious claims get litigated has to make you wonder whether the so-called patent troll problem is really a problem or whether it is something that they actively perpetuate in order to achieve the “reforms” they continually ask Congress to adopt.
Take a quick listen to the many conversations that have been taking place in the computing world over the past year and you’ll likely notice one term being thrown about fairly often: cloud computing. This new form of computer networking is fraught with possibilities that would completely transform the idea of computing, whether in the home or in the workplace.
Even as more of us are becoming acquainted with the idea of the cloud, many of us are still woefully ignorant of what the term actually means. For example, a survey by cloud software developer Citrix Systems showed that 54 percent of respondents did not believe that they used cloud-based computing, even though 95 percent of them actually did. Almost as many respondents confused the cloud metaphor, believing that stormy weather could actually interfere with cloud systems.
Cloud computing is set to take a much more prominent role in our technologically savvy society. Providing advanced computing applications through networking channels severely reduces the IT needs of homes and businesses who want to use more powerful software programs without installing them on a client computer. With more than $131 billion in economic activityfor the cloud computing sector in 2013, more business infrastructure and software services should be taking to the cloud than ever before.
Entire corporations have begun to narrow their focus on cloud computing. IBM has been developing cloud-based solutions for business needs for a few years now, and Google’s cloud options for Internet users include online file storage and document creation. It is against this backdrop that we want to take a quick look back at 2013 and celebrate what some could call the Year of the Cloud, during which the concept began to truly enter the mainstream consciousness.