Late yesterday I was contacted via telephone by a representative of Google about my article titled Is Patent Litigation Really a Problem for Big Tech? I was told during that telephone conversation that I misunderstood what Suzanne Michel said during the symposium at American University. I was also told that Google does not sell patents to patent trolls, although other big tech companies do, which concerns Google.
There is a video tape of Michel’s presentation, which you can view online courtesy of American University. I have reviewed the pertinent part of the video tape multiple times, and I have asked for input from several trusted advisers. I have also received unsolicited input from others who have also seen the video tape and who were present at the event. What is most clear is that there is a reasonable difference of opinion about the meaning of what was said.
Google has asked for a retraction based on what was said at 58:45 into the video segment, but what I wrote relied upon what was said at 53:45 into the video segment. I am not entirely comfortable with a retraction because I think my interpretation of what Michel said was fair, although I’m willing to accept Google at face value when they tell me that they do not sell to patent trolls. So rather than retract and say I misinterpreted what was said I will leave it to the readers to determine the reasonable interpretation of what was said during the presentation.
UPDATED: May 2, 2013 at 12:17am ET — An earlier version of this article explained that Google sells to patent trolls. Google has since informed me via telephone that they do not sell to patent trolls, but other big tech operating companies do sell to patent trolls, which concerns Google. See Google: We Don’t Sell to Patent Trolls.
Recently at a conference at American University Washington College of Law a senior patent attorney from Google — Suzanne Michel — lamented that big technology companies are practically forced to sell their patents to patent trolls. See Fixing the Patent System. So as it turns out big tech companies are responsible for creating at least a portion of the so-called “patent troll problem” by and through their own actions and business decisions. So how and why should their position relative to patent litigation be taken at all serious when they themselves admit to creating the problem in the first place?
If big tech companies are selling unwanted patents to patent trolls who then turn around and monetize them there are a lot of questions to ask. First, why are they selling to those who then turn around and sue them? There is an obvious solution to this problem, if it is indeed a real problem and not one made up for sake of publicity and swaying public opinion (and political opinion on Capitol Hill). Second, what are they doing selling patents that can be monetized? If they are giving these patents away how is that appropriate at all when the company needs to answer to shareholders? Isn’t the goal of any company to maximize returns for shareholders? Finally, if operating companies are selling to patent trolls then how is it possible that patent litigation is as big a problem as it is claimed to be? Something just doesn’t smell right here, but a room full of symposium attendees were told that big tech companies sells out to patent trolls. Curious.
As counter-intuitive as big tech companies selling to patent trolls may be, equally head scratching is how big tech companies complain about getting sued but refuse to negotiate unless they are sued. Seems like their actions force lawsuits that they complain about and hoist up to proclaim the patent system broken. Talk about the emperor wearing no clothes!
On Friday, April 12, 2013, I was at American University Washington College of Law for a program titled Patent Subject Matter Eligibility Today: Software, Genomics, and Business Methods. I participated on a panel titled CLS Bank en band: Are Software Methods Patentable? What I want to write about today, however, is not our panel presentation, but rather the Keynote presentation by Suzanne Michel (no relation to Chief Judge Michel), a former deputy director of the FTC who is Senior Patent Counsel at Google, Inc., working in Google’s policy office in Washington, DC.
It is no great surprise probably, but I disagreed with practically everything she said, although I did enjoy her presentation. I love to debate the issues, and she is extremely knowledgeable and well briefed on what is happening in the trenches. Those of us who disagree with the proffered narrative that the patent system is broken can’t ignore competent advocates like Michel. She is not a patent-hater and her message is sharp, crisp and clear, although I do think it is misleading. The patent system is not broken, and for reasons I can only guess the best and brightest leaders in much of the big-tech industry are pursuing paths not calculated to succeed; at least if the goal is to stem the rise of patent litigation and innovate for the future.
With this in mind, what follows is a summary of Michel’s presentation, which if not titled was certainly themed — Fixing Problems of the Patent System to Improve Innovation. I also provide my thoughts and comments in the format of comments from the peanut gallery, or perhaps as a patent law equivalent to Mystery Science Theater 3000. In order to differentiate my thoughts/comments from Michel’s presentation, my comments are italicized, colored, indented and tagged with the IPWatchdog logo.
On Friday, March 22, 2013, Administrative Law Judge David P. Shaw of the United States International Trade Commission issued a remand determination relating to the investigation instituted by the Commission to investigate patent infringement allegations leveled against Microsoft’s Xbox . Judge Shaw determined that the Xbox does not infringe the remaining patent involved in the ITC investigation, which is a complete reversal of his earlier determination that the Xbox did infringe (see below).
Shaw’s remand determination was brief:
It is held that a violation of section 337 of the Tariff Act, as amended, has not occurred in the importation into the United States, the sale for importation, or the sale within the United States after importation, or the sale within the United States after importation, of certain gaming and entertainment consoles, related software, or components thereof that are alleged to infringe asserted claims 1 and 12 of U.S. Patent No. 6,069,896.
The full Commission now has until July 23, 2013, to consider Judge Shaw’s remand ID.
Google is another technological innovator whose name comes up often every week at the U.S. Patent & Trademark Office, as they are in the habit of protecting many aspects of their Android system and various other Internet developments. This week, the USPTO published 9 patent applications assigned to the firm. Some of these improve user interfaces associated with touchscreen displays or head-mounted displays. Google also received 25 patents this week, including one that looks to improve online systems of user review for products.
Social media has proven to be a huge boon for businesses who can get word-of-mouth to spread faster than television or print advertisements. Businesses often use their social media presence to offer giveaways to customers, which helps encourage others to follow the business if they believe they might benefit in some way. A user can also check-in to a business establishment through social media, which helps spread the word to their social media contacts.
Google’s hoping to protect a system of rewarding customers for using social media to build exposure for a business. This system keeps track of check-ins, tags and other digital footprints left by social media users that involve the place of business. If a customer’s check-in is followed quickly by many other check-ins from people within the initial individual’s social network, the business could decide to send a promotional coupon or other digital item directly to the first individual who attracted the new business.
More news to report in the ongoing ITC battle between Motorola Mobility (owned by Google) and Apple. Earlier this week the U.S. International Trade Commission announced that it will review part of the presiding Administrative Law Judge’s (“ALJ”) initial determination issued on December 18, 2012, finding no violation of section 337 of the Tariff Act of 1930 by Apple. The ITC case is styled In the Matter of Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof, and is Investigation No. 337-TA-745
The ITC had originally instituted an investigation on November 8, 2010, based on a complaint filed by Motorola Mobility, Inc. The complaint alleged violations of section 337 as the result of importation into the United States and the sale within the United States after importation of certain wireless communication devices, portable music and data processing devices, computers and components thereof. The violation of section 337 was alleged to be the result of patent infringement. Specifically Motorola Mobility charged Apple with infringing U.S. Patent Nos. 6,272,333 (“the ’333 patent”); 6,246,862 (“the ’862 patent”); 6,246,697 (“the ’697 patent”); 5,359,317 (“the ’317 patent”); 5,636,223 (“the ’223 patent”); and 7,751,826 (“the’ 826 patent”). The ITC subsequently terminated investigation into the ’317 patent (on June 28, 2011) and the ’826 patent (on January 27, 2012).
Paul Ryan is a more common name than you might think. In the world of politics when one speaks of “Paul Ryan” they are talking about the Republican Congressman from Wisconsin who was Mitt Romney’s running-mate and would-have-been Vice President. But in the intellectual property world, particularly the patent litigation world, the name “Paul Ryan” refers to the CEO of Acacia Research Corporation. It is the later Paul Ryan that went on the record with me to discuss Acacia, patent enforcement, how large companies who are infringers disregard innovative independent inventors and much more.
This two-part interview took place on December 20, 2012. With the holidays looming and various articles already in the pipeline for the end of the year and start of 2013 publication slid a bit.
Sometimes when I’m doing an interview I have a good feeling about it and know it will turn out very good in print. This was one of those times. I enjoyed my conversation with Ryan and think you will find it quite informative and interesting as well. Without further ado, here is my interview with Paul Ryan.
Google Inc. has agreed to change some of its business practices to resolve Federal Trade Commission concerns that those practices could stifle competition in the markets for popular devices such as smart phones, tablets and gaming consoles, as well as the market for online search advertising.
Under a settlement reached with the FTC, Google will meet its prior commitments to allow competitors access – on fair, reasonable, and non-discriminatory terms – to patents on critical standardized technologies needed to make popular devices such as smart phones, laptop and tablet computers, and gaming consoles. In a separate letter of commitment to the Commission, Google has agreed to give online advertisers more flexibility to simultaneously manage ad campaigns on Google’s AdWords platform and on rival ad platforms; and to refrain from misappropriating online content from so-called “vertical” websites that focus on specific categories such as shopping or travel for use in its own vertical offerings.
“The changes Google has agreed to make will ensure that consumers continue to reap the benefits of competition in the online marketplace and in the market for innovative wireless devices they enjoy,” said FTC Chairman Jon Leibowitz. “This was an incredibly thorough and careful investigation by the Commission, and the outcome is a strong and enforceable set of agreements.”