On Monday, October 26, 2009, Google, Inc. was sued for patent infringement relating to its new Chrome browser by Red Bend, Ltd., an Israeli corporation and Red Bend Software, a Delaware corporation located in Waltham, Massachusetts. Red Bend, Ltd. is the owner of US Patent No. 6,546,552, and Red Bend Software is the exclusive licensee of the ‘552 patent (hereinafter “Red Bend”). The complaint filed by Red Bend in the United States Federal District Court for the District of Massachusetts alleges that the Google Chrome browser infringes “one or more claims of the ‘552 Patent either literally or under the doctrine of equivalents.” The complaint is rather bare bones, does not identify the claims that are believed to be infringed and upon initial reading I thought this type of complaint by ambush, of which I am not a fan, wreaked of a patent troll. That was my thought at least until I got to the end and see that Dwyer & Collora, a Boston law firm, are local counsel and Baker Botts is seeking admission pro hac vice. While I may not like complaints without claim numbers, this is definitely not a troll action. Red Bend offers products and services, and are not just in the business of suing. On top of that, the big guns have been brought to bear. Without knowing anything about the underlying merits I feel comfortable saying that we should keep an eye on this litigation.
Once upon a time I used to teach Civil Procedure at Temple University School of Law, and I have long believed that complaints should articulate enough to put the defendant on notice. Filing a complaint without mentioning which claims are believed to be infringed is common, perhaps even becoming increasingly common. So my intention is not to criticize this complaint. If the district courts are going to allow this sort of complaint then you might as well take the tactical advantage of not disclosing until required. Personally I think any patent reform should address the front end of litigation rather than the back end by curtailing damages, but I digress. Who am I to question Baker Botts, a firm with offices all over the world and according to their website 74 attorneys devoted to practicing intellectual property litigation? Well, I suppose like every attorney I can have an opinion, but folks in the industry would do well to take notice of this litigation because this is not a case where a small law firm is “patent trolling” for a potentially big pay day. That is not the large firm mentality, and the existence of a reasonably sized local counsel and the presence of Baker Botts suggests there is something here, despite not really being able to tell that from the complaint.
What specifics the complaint does provide with respect to the how and why the ‘552 patent is infringed reside in paragraphs 16 and 17, which state:
16. For example, and without limitation, on information and belief, Google’s implementation of its differential compression algorithm for making Google Chrome updates significantly smaller (hereinafter “Courgette”), used by Google and, others under the direction and control of Google, in this judicial district and elsewhere in the United States, infringes one or more claims of the ‘552 Patent.
17. As another example, and without limitation, on information and belief, Google’s publication and distribution of the source code for the Courgette algorithm induces others’ infringement of one or more claims of the ‘552 Patent.
The ‘552 patent was filed originally in the United States on August 18, 1999, and issued as a patent on April 8, 2003. The US patent application claimed the priority of an Israeli patent application filed on August 19, 1998, which is the earliest priority date. This means if Google is going to try and invalidate one or more of the patent claims they are going to have to come up with prior art that pre-dates August 19, 1998. So the many folks who will undoubtedly joke about this patent and claim it is illustrative of a patent system gone wrong would do well to keep that in mind before they embarrass themselves and show their patent ignorance. The fact that something can be demonstrated to be known in 2009 does not mean that it was known or used before August 19, 1998. Allow me also to point out that saying “everyone knew this before August 19, 1998” is unhelpful. Evidence is required, not supposition or bloviation.
The ‘552 patent has some 68 patent claims and is 16 pages long in a PDF file. Summarizing the patent quickly is, therefore, impossible. It is impossible also to focus on the aspects of the patent that will become relevant to the litigation without more information, which is simply unavailable at this point in time. Nevertheless, in order to give a flavor about what this patent covers I offer the following two paragraphs from the Summary of the Invention, which should give an approachable feel for what the underlying technology is about, although the exclusive rights granted will certainly be defined by the claims.
As explained above, applying a known per se file difference utility to an old program and a new program normally results in a relatively large amount of data, even if the modifications that were introduced to the old program (in order to generate the new program) are very few. The present invention is based on the observation that the relatively large size of the difference result stems from the alterations of reference in reference entries as a result of other newly inserted entries (and/or entries that were deleted).
On the basis of this observation, the invention aims at generating a modified old program and a modified new program, wherein the difference in references in corresponding entries in said new and old programs as explained above, will be reflected as invariant entries in the modified old and new programs. The net effect is that the invariant reference entries (between the modified old program and the modified new program), will not appear in the difference result, thereby reducing its size as compared to a conventional difference result obtained by using hitherto known techniques.
Time will tell what becomes of this case, but with Baker Botts involved this is hardly a David vs. Goliath case. Certainly Google is a Goliath, and Red Bend is likely justifiably characterized as a David. Notwithstanding, the great equalizer here is the presence of Baker Botts, who is hardly a David, and is in fact a Goliath in the legal community.
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