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.”
On December 19, 2012, ARRIS Group, Inc. (NASDAQ: ARRS) and Google Inc. (NASDAQ: GOOG) jointly announced that ARRIS and Motorola Mobility, a Google subsidiary, have entered into a definitive agreement under which ARRIS will acquire the Motorola Home business from Motorola Mobility, for $2.35 billion in a cash-and-stock transaction approved by the Boards of Directors of both companies. The acquisition will be on a cash-free, debt-free basis and is expected to be significantly accretive to ARRIS’ Non-GAAP earnings starting in the first full year after closing.
Under the terms of the agreement, upon closing of the transaction, Google will receive $2.05 billion in cash and approximately $300 million in newly issued ARRIS shares, subject to certain adjustments provided for in the agreement, representing an approximately 15.7% ownership interest in ARRIS post-closing.
On Thursday December 13, 2012, Google and a group of Belgian newspaper publishers reached an agreement on a 6-year long copyright dispute.
In an official statement that was released by Google, the company stated: “We have reached an agreement that ends all litigation. From now on Google and Belgian French-language publishers will partner on a broad range of business initiatives.”
Thierry Geerts, Managing Director of Google Belgium, also wrote on the Google Europe blog: “We have reached an agreement that ends all litigation and represents great news for both us and the newspapers. We continue to believe that our services respect newspaper copyrights and it is important to note that we are not paying the Belgian publishers or authors to include their content in our services.”
Shortly after the Nortel transaction and Google’s acquisition of Motorola Mobility in the summer of 2011, some industry observers quickly warned us that patent market was a bubble (here, hereand here). The debate over the patent bubble has been going on since then (examples can be seen here, here and here). Some were saying that the patent bubble has already burst (hereand here), some saying it’s about to, while still others keeping hailing the booming patent market.
To be sure, all of the concerns over the patent bubble are legitimate, and as always, rational debate is beneficial to the healthy development of patent market. There is no doubt that most of the opinions expressed were based on the observers’ experience and the information available to them at the time. Unfortunately, unlike in the well-established financial markets where transaction information and price data are mostly available for research and analysis, the prices and deal terms in patent transactions are usually kept secret by the parties. Except for meeting certain regulatory requirements (such as SEC filing in the US) for publicly-traded companies, there is usually not much additional motivation for the parties to release the prices and deal terms in patent transactions.
The lack of disclosure leads to the scarcity of data, and what comes with the scarcity are the incompleteness and obscurity, all of which lead to misinterpretation of the data and information. More importantly, misinterpretation, in turn, can lead to mispricing and market inefficiency when the misinterpreted data is applied to value patents for transaction. For example, after the Nortel transaction and Google’s acquisition of Motorola Mobility, some observers noticed that both deals were concluded on a $750K per patent basis. Therefore, as the story goes, market price per patent was about $750K per patent.
The Association of American Publishers (AAP) and Google announced earlier today that the parties had reached a settlement agreement in the ongoing copyright infringement lawsuit that pits content creators against Google. This copyright dispute started between Google and various content creators as the result of Google’s efforts to digitize books for distribution on the Internet without first obtaining copyright permission. According to AAP and Google, the settlement will provide access to AAP in-copyright books and journals digitized by Google for its Google Library Project. The dismissal of the lawsuit will end seven years of litigation, at least between these parties.
The Authors Guild, however, has not given up the fight and will continue to move forward against Google.
“The publishers’ private settlement, whatever its terms, does not resolve the authors’ copyright infringement claims against Google,” Authors Guild executive director Paul Aiken said in a statement. “Google continues to profit from its use of millions of copyright-protected books without regard to authors’ rights, and our class-action lawsuit on behalf of U.S. authors continues.”
Earlier today, while working on revamping the PLI Patent Bar Review Course, I needed a citation to the MPEP and an associated Code of Federal Regulations cite. It was as this time I noticed there has been a change to how the MPEP is presented on the USPTO website. Perhaps others have noticed and this is not news, but it is the first time I’ve encountered an issue finding information in the MPEP from the USPTO for a very long time.
One of my responsibilities is to write exam level difficult questions for the newly testable material, which will be tested starting October 2, 2012. This means questions relative to the changes in the rules of practice effective September 16, 2012. This requires me to not only write the questions, but also create model answers. We strive not only to explain generally what the right answer is, but to also provide a greater opportunity for learning, which requires detailed explanations.
It was at this time that I realized that the USPTO has reclassified the Manual of Patent Examining Procedure, changing the URLs where sections were located previously, making them unfindable if you use a search engine. In some instances my search even leads to “Page Not Found” errors when searching on the USPTO website itself.
We’ve titled this paper Round 2 because it feels like we’ve been through a boxing match regarding our first article on the subject. Despite the wounds, we felt that the first article brought up a number of interesting issues and generated a few very useful discussions, causing us to rethink our initial conclusion.
First, we’d like to thank the people who commented and gave useful information, particularly those who pointed to relevant links and applicable documents. That was much more helpful than the personal attacks posted in response to our article.
Second we want to again state that we did not accuse anyone of copying, of theft, of illegal activity, of guilt, or of infringement. We tried to walk the line of fairness. Some readers accused us of making those accusations. Interestingly, some readers claimed we were unfairly accusing Oracle, some claimed we were unfairly accusing Sun, and others claimed we were unfairly accusing Google. Maybe that means we succeeded in walking that line. (We did not actually accuse any party.)
We did say, however, that it appears Oracle missed a number of files that appeared to have been copied from Sun, but distinctly noted, “Not knowing all of the details of the case, there could be issues that we’re not aware of.” We realize that this was a long case involving many people, much code, and a very large pretrial record containing a huge number of documents. As we explained in the beginning of the article, we considered this an interesting exercise and wanted to share our results.
The decisions in the recent intellectual property lawsuit of Oracle v. Google[i] have drawn the attention of software developers and intellectual property lawyers alike. As we read about the verdict’s potential to shape future copyright case law, our team here at Zeidman Consulting also wondered whether all the facts in the copyright portion of the case had been uncovered. We decided to pursue these questions using the advanced tools for detecting copyright infringement created by our sister company, Software Analysis and Forensic Engineering (SAFE Corporation) and the thorough processes that we have developed. What started off as simple curiosity turned into an interesting research and analysis project to determine if we could uncover evidence of copyright infringement that Oracle’s experts had missed. Our two-week effort turned up some very surprising results–significant amounts of apparently copied code that was not brought up at the trial.
The Oracle v. Google Lawsuit
The lawsuit began with Oracle accusing Google’s mobile operating system, Android, of violating both patents and copyrights that Oracle holds based on its Java programming language. Specifically Oracle initially accused Google of infringing seven of Oracle’s patents [ii] though five were later thrown out [iii], and also accused Google of copying 37 Java language application program interfaces (APIs) [iv] and other Java source code into Android source code. This article focuses on the copyright portion of the case, leaving the patent infringement claims to a future article (if we have the time).