Merry Christmas and Happy New Year Google, Microsoft and Apple! On Monday, December 23, 2008, Cygnus Systems, Inc., sometimes referred to on the web as Troll Systems, sued three of the largest patent troll targets there are; namely the aforementioned Google, Apple and Microsoft. The patent in question, US Patent No. 7,346,850, which relates to a method and system for storing, navigating and accessing files within an operating system through the use of a graphical thumbnail representing the video display of the active document within the active application, and organized chronologically by the most recent file captured. The ‘850 patent was issued on March 18, 2008, and is a continuation of an application originally filed on June 12, 1998. Perhaps you tech giants might want to move to the top of your 2009 resolutions the idea of getting a clue and developing a strategy to deal with patent trolls because whatever it is that you think you are doing is failing miserably and only wasting shareholder resources, which in these economic times ought to be practically treasonous.
In the past I have often criticized the use of the pejorative term “patent troll” because patents grant rights and when those rights are infringed there should be redress for the patent owner. That is the way the patent system is set up and in my opinion it is the way it ought to work. Over time, however, I have heard from many people in the industry that what they see coming at them by way of lawsuits is nothing more than harassing, and I would have to say if that is the definition of what a patent troll is then I can’t imagine how else Cygnus Systems could be properly characterized. The federal complaint filed by Raymond Niro in the United States District Court for the District of Arizona has absolutely no useful information in it and is hardly appropriate to put anyone on notice of what the plaintiff is claiming the defendants did wrong. I have been a law professor for many years, and I have taught Civil Procedure, and if any student ever handed in this complaint for a graded assignment it would receive an F for content and an A for strategy. The tech giants just have no clue how to handle patent trolls even though the solution is plain as day.
Now don’t get me wrong, if you are a patent owner and you believe you have rights that have been infringed and you can entice Niro or his firm – Niro, Scavone, Haller & Niro – to take your case go for it! The Niro firm has established itself in a very special niche in the patent litigation industry. They are not afraid of going after the big boys who swim in the deep end, and the big boys do not like them one bit at all. They threaten lawsuits and then deliver them as promised, and they seem to have a pretty good track record of success. So if you have a patent and you think a major company is infringing, who are you going to call? It isn’t the Ghostbusters, it is the Niro firm.
From what I can see looking in from the outside what is going on is the major targets of patent trolls are sick and tired of getting sued by Niro and the other attorneys out there that represent those with patents that are perhaps of questionable integrity, but they really do not seem to have a plan on dealing with the so-called patent troll problem in any meaningful way. How is spending tens of millions of dollars a month in attorneys fees and settlements a strategy for fending off patent trolls? I suppose if you wish to identify a losing strategy then it could be called a strategy, but does a pinata really have a strategy? Up until the recent success of the Red Sox I always thought it strange to say that the Yankees and the Red Sox had a rivalry. The hammer and the nail do not make a rivalry any more than tech giants and patent trolls. Patent trolls hold all the cards, there is no down side to being a patent troll, so unless and until the tech giants stand up and start fighting like it matters being a patent troll is not only lucrative, but smart business.
So what is it exactly that Cygnus Systems thinks Google, Microsoft and Apple are doing to infringe the ‘850 patent? I couldn’t tell you and I am sure they can’t tell you either. The complaint filed by Niro does nothing to inform the defendants, which is not supposed to be the case under the rules of Federal Procedure, but given that this type of thing happens over and over again it seems to be a strategy, and a winning strategy at that. You see, the defendants are going to argue to the judge that they don’t even know what they are alleged to have done, they will spend money and waste time. Ultimately they will learn what they are alleged to have done, but in the process they will become frustrated, angry and full of self-righteousness. No one ever fights smart when they are made, and Niro makes the tech giants mad like lunatics. I don’t personally know Niro at all, so I can’t say for sure if this is all strategy, but as I continue to watch these battles they almost always have a Tom & Jerry like quality, and it never seems to turn out well for Tom in the end, just like it never turns out well for the tech giants in the end.
Just for the record, here is what the complaint alleges each of these tech giants have done wrong.
8. Microsoft has infringed one or more claims of the ‘850 Patent at least by making, using, selling, and offering for sale its Vista operating system and Vista’s accompanying iconic file preview and access functionality. Microsoft has further infringed one or more claims of the ‘850 Patent at least by making, using, selling, and offering for sale its Internet Explorer 8 web browser and Internet Explorer 8’s accompanying iconic file preview and access functionality.
9. Apple has infringed one or more claims of the ‘850 Patent at least by making, using, selling, and offering for sale its Mac OS X Leopard (“Leopard”) operating system and Leopard’s accompanying “Finder” and “Cover Flow” features, which include iconic file preview and access functionality. Apple has further infringed one or more claims of the ‘850 Patent at least by making, using, selling, and offering for sale its iPhone and iPhone’s accompanying iconic file preview and access functionality, including but not limit to the iconic file preview and access functionality of iPhone’s main menu and Safari Internet browser applications.
10. Google has infringed one or more claims of the ‘850 Patent at least by making, using, selling, and offering for sale Google’s Chrome web browser and Chrome’s accompanying iconic file preview and access functionality.
So all that we know is that the most widely successful tech products known to man allegedly infringe the ‘850 patent for unknown and yet to be identified reasons. Now that shouldn’t be hard to defend, at least not after spending tens of millions of dollars, after which you will ultimately settle again for millions of dollars. Maybe I ought to become a patent troll in 2009. Now there is a resolution!
About the Author
|Eugene R. Quinn, Jr.
President & Founder of IPWatchdog, Inc.
US Patent Attorney (Reg. No. 44,294)
B.S. in Electrical Engineering, Rutgers University
|Gene is a US Patent Attorney, Law Professor and the founder of IPWatchdog.com. He teaches patent bar review courses and is a member of the Board of Directors of the United Inventors Association. Gene has been quoted in the Wall Street Journal, the New York Times, the LA Times, CNN Money and various other newspapers and magazines worldwide.|