Beyond the Smartphone Battle
Sometimes mutually assured destruction fails, and legal hell is unleashed, as in the ugly Apple-HTC lawsuit in progress over smartphone patents. (There are enough smartphone lawsuits in progress that you really need a scorecard to keep track of them all.) But there are a number of lower-profile patent cases out there that you should perhaps be keeping an eye on; after all, who would have guessed that a 30-employee Canadian company would have come close to stopping sales of Microsoft Office worldwide? These seven cases, still in progress, could change the course of tech, might illustrate an interesting point -- or may just serve as a nuisance for various companies for years to come.
Old School: Lucent v. Microsoft
If you want an indication of the extent to which legal battles can drag on endlessly -- and drain the budgets of tech companies who should be churning out shiny gadgets for our amusement -- look no further than this epic struggle, which has been raging in one form or another since 2002, yet still made the Patently-O blog's list of important ongoing patent cases. It was originally based on a 1986 patent on data entry via onscreen keyboard that Lucent inherited from Bell Labs, and which Microsoft was found to have violated with a date-picker widget.
If that sounds like it should be scary for every smartphone and tablet maker out there, don't worry: the patent itself expired years ago. But litigation soldiers on, now over the details of the penalty Microsoft has to pay. Interesting points of law raised include the argument that, just because an application contains a patented innovation doesn't mean that innovation is responsible for the whole value of the application (as one judge put it, "There was no evidence that anybody anywhere at any time ever bought Outlook ... because it had a date picker"), and juries' right to assess the "obviousness" of a patent without too much kibitzing from judges on appeal.
Picture courtesy of Patently-O, from the patent filing
Patent War 2.0: Twitter v. TechRadium
If the Microsoft-Lucent battle showed patent wars' longevity, this lawsuit filed against Web 2.0 darling Twitter last fall shows that they aren't going away anytime soon. It also presents an interesting question: is a company liable for patent infringement if its service wasn't designed with the infringement in mind?
TechRadium is a company that specializes in getting emergency alerts out to multiple users quickly, through a service called IRIS. Clients can choose how these alerts can be sent, and in what order -- for instance, they could first receive a text message, then an automated voice call at a different number if that isn't acknowledged. TechRadium's patent covers the multi-device angle in particular.
TechRadium's attorney says that he and his clients "don't really give a damn about social networking." But they do care that government agencies are starting to use Twitter as a means to disseminate information, including emergency data, to multiple devices (since you can read Twitter on your computer, on your phone, on, uh, your Internet-enabled TV...) -- even though Twitter has never actively promoted itself for these purposes.
Picture courtesy of CC Chapman
Not All Who Sue are Trolls: VirnetX v. Microsoft, and TecSec v. the World
If we're going to extend the patents-as-nuclear-weapons metaphor from the intro to this article, the equivalent of the rogue state or the nuclear-armed terrorist group would be the "patent troll": a company that has little or no business activity other than ownership of (often broadly written) patents and associated litigation. The name was coined by Intel General Counsel Peter Detkin, who was sued for libel when he called a litigation opponent a "patent extortionist," with "troll" being an apparently non-actionable term of abuse. These companies are among the most hated among techies, though the companies themselves argue that they encourage innovation by buying patents from others, and subsequently have the right to enforce the rights they've acquired.
One case that has the whiff of a classic patent troll fight is VirnetX v. Microsoft; the former is suing the latter over patented VPN technologies that, according to VirnetX, have been built into virtually every Microsoft Office and Windows product of the last decade. VirnetX sells no products, and the patents were originally issued to Science Applications International Corp., and developed for the U.S. Navy -- and, most infuriatingly to those who find this sort of litigation distasteful, the judge's moves in the case so far have favored VirnetX.
But there can also be a tendency to see a company you've never heard of issuing mass lawsuits against big names and assume they're a troll. That might have been many people's first reaction when hearing that IBM, Sun, Oracle, eBay, Cisco, and Adobe were all being sued by TecSec, a company that got several orders of magnitude more famous when news of this lawsuit hit the tech press. But TecSec, though obscure, is a real company with real products you can buy, based on the sort of encryption it claims is being pilfered by the giants. We're in no position to judge the legitimacy of those claims, of couse, but it at least it looks to be a legitimate tech vendor.
Picture courtesy ofelgin.jessica
If at First You Don't Succeed: TiVo v. Dish and EchoStar, Xerox v. Google and Yahoo
In the late '80s and early '90s, the early days of the GUI climaxed in an Apple-Microsoft lawsuit over who had the rights to the all the concepts we now take for granted in that realm (windows, menus, the works). The suit (which, to be clear, involved copyright, not patents) was joined in progress by Xerox, who had a good claim to having beaten both the PC giants to the punch with its Alto computer (GUI shown below); the courts eventually sent everyone home with no sanctions, and the elements of the GUI as we know it essentially become public property. Xerox in particular had its claims dismissed because the statute of limitations on them had expired.
Perhaps the still-stinging institutional memory of this loss at the dawn of the PC age has prompted Xerox to launch a new patent salvo, against Google and Yahoo. But to this non-patent attorney, the violations don't seem as immediately obvious as the Alto's fingerprints on Windows and Mac OS. Xerox has patented a "system for automatically generating queries," supposedly violated by AdWords and AdSense, as well as a host of Yahoo! offerings; and a "method and apparatus for the integration of information and knowledge," a frighteningly broad-sounding patent that actually has to do with updating a Web site based on user reviews, and which is supposedly violated by Google Maps and YouTube. Naturally Google and Yahoo say the claims are specious; we'll find out what the courts think over the next, you know, four to twelve years or whatever.
Meanwhile, if Xerox is trying to compensate for past failures, TiVo is working to follow up on past successes. The DVR pioneer had already bested EchoStar and the Dish Network in court over TiVo's patented "timewarp" system, which is the basis for live TV pausing (essentially, a program can be watched and recorded at the same time). As many losers in patent cases do, the defendants came up with a workaround -- which has now also been slapped down in court. The lesson: Your patent loss isn't the end, necessarily.
Picture courtesy of toastytech.com
HP v. MicroJet: Just One Arrow in the Quiver
This week Hewlett-Packard made an accusation that, if true, would prove rather startling: MicroJet and a number of Asia-based companies had been stealing HP printheads -- in at least one case actually hijacking a truck carrying them to an assembly plant in Malaysia -- and then integrating them into their own knockoff printer cartridges. It's a tale of corporate espionage and derring-do and outright violence, and thus it's a little weird that six of the nine counts HP has leveled are actually assertions that HP's patents are being violated.
So why such a seemingly mild approach to what looks like a major crime? Think of it along the lines of Al Capone's conviction for tax evasion. The government couldn't prove the ill-gotten provenance of Capone's riches, but could prove that he never paid the IRS what he owed on that income. Similarly, HP may never be able to connect the dots between MicroJet and the theft of its physical equipment -- but because technologies in that equipment had been patented, MicroJet wouldn't be able to sell it even if they had built the printer cartridges themselves. It's an interesting bit of legal jujitsu.
Picture courtesy angrykeyboarder