No, You Don't Have To File Patent Lawsuits

from the bogus-reasons dept

Fri, Feb 26th 2010 12:43am — Mike Masnick

A bunch of folks have been sending in the news of Xerox's patent lawsuit against Google and Yahoo over search technology, and I'd debated posting it at all. It's the same old story. A company widely considered a has-been goes searching through its patents, on technology it did nothing at all with, and sues other companies who had the same idea and actually went forward and implemented it successfully. Yet another case of "those who can't innovate, litigate."

But what caught my attention was Xerox's given reason for pursuing the lawsuit:

"We believe we have no option but to file suit to properly protect our intellectual property."

Sorry, but that's no reason to file a lawsuit. It's a common cliche in patent lawsuits, but it's totally bogus. Of course you have other options. There is no rule that you have to file a lawsuit to "protect" the patent. There is no "protecting" that needs to be done. This is just a blatant attempt to squeeze money out of companies who actually implemented a product where Xerox failed. That's not protecting, it's shaking down.

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Filed Under: patents, protection, search
Companies: google, xerox, yahoo

30 Comments

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Anonymous Coward, 26 Feb 2010 @ 2:32am

Last month I met someone from Scotland who was well acquainted with not only Edinburgh, but also Toulouse. He was a relatively interesting person, and in the process of rediscovering himself. In all, he reformed my view on what a Scottish person is. I knew a 100% Scott from years ago and he was quite an angry one, and over the years I may have transferred who he is to who I think you are.

But most of my perception changed when I met this very interesting fellow a few months ago. I've been told that Scotts are a relatively defensive folk, and you will remain in their graces until you start doing things like telling them where to get kosher pizza. Mike, this is why I gave him your home address. If a mild-mannered Scott shows up at your doorstep, knocking at your door, with a big hiker's backpack looking to sleep on your couch, just know it wasn't because of anything that occurred here.

Nonetheless, I discussed the idea of the CfW-(RtB) party at length before expanding upon it here. It's possible that it should it occur, and because you have a kid on the way it doesn't provide for childcare. However, your dog and wife are more than welcome to attend. Unfortunately, the organic " -(RtB)" experiment doesn't include even a 1/52 "$100M/yr" you require to pull you away from your website, so as such, I assume you will remain at home. Especially considering that people found updating a blawg would be put on an island with your own dog, which wouldn't be acceptable to anyone except you.

Nonetheless, I believe that you'll have fun at home with your cat/s along with the trolling you typically do to all of us. I have over two dozen people that want to go, and out of them, over 9000 may be afraid that you would show up, and that's a big no-no, so as noted in the earliest post: you're unfortunately not invited. But that's okay, because with the newborn you wouldn't be able to leave anyway.
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Binkie Muddlefoot, 26 Feb 2010 @ 2:34am

Re:
WTF? Who are you?
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Jeff, 26 Feb 2010 @ 2:37am

Laches
http://en.wikipedia.org/wiki/Laches_(equity)
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J. Gander Hooter, 26 Feb 2010 @ 2:40am

Re: Re:
Shhh. Be quiet let's see what he says.
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vyvyan, 26 Feb 2010 @ 3:05am

Re: Re: Re:
Apparently, he never had anything to add or to say. Even toddlers on yahoo answers make more sense that this guy. It's a pain in the a** to read comments on tech dirt. He is one reason why everyone shouldn't be allowed to open their mouth on internet.
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Anonymous Coward, 26 Feb 2010 @ 3:14am

Re: Re: Re: Re:
Precicesly. I've been thinking that all along.

Oh well.

NOTICE: This communication may contain confidential, proprietary or legally privileged information. It is intended only for the person(s) to whom it is addressed.

If you are not an intended recipient, you may not use, read, retransmit, disseminate or take any action in reliance upon it. Please notify the sender that you have received it in error and immediately delete the entire communication, including any attachments. We do not encrypt and cannot ensure the confidentiality or integrity of external message communications and, therefore, cannot be responsible for any unauthorized access, disclosure, use or tampering that may occur during transmission. This communication is not intended to create or modify any obligation, unless the firm clearly expresses such an intent.
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Anonymous Coward, 26 Feb 2010 @ 3:30am

Re: Re: Re: Re:
Hmmm. I think the same about Mike sometimes.
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Anonymous Coward, 26 Feb 2010 @ 3:39am

Re: Re: Re: Re:
Mike usually responds when it's no longer on the front page.
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Anonymous Coward, 26 Feb 2010 @ 6:28am

A "has-been"?
Wow, Xerox posted revenues of more than $15 BILLION in 2008, which was a horrible year for most companies. Their earnings were down from more than $1 billion the year before to about a quarter of a bilion. They employ around 57,000 people and had no significant layoffs in 2008 or 2009.

Yahoo had revenues of about $7 billion and somewhere around 14,000 employees in 2007 (there is no annual report for 2008).

Google is a powerhouse, with about $22 billion in revenue for the most recent year and $4 billion in income. However, Google employs only about 20,000 people.

The only difference I see between the "has-been" and Yahoo and Google are the typical differences I see between a company that actually manufactures products and a company that provides a service.
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Anonymous non-US patent attorney, 26 Feb 2010 @ 7:28am

Legal advice
Sir,

I read with great interest your remarkably succint legal advice that litigation is not neccessary in the case of a known patent infringement.

Previously one had to be very careful about estoppel, laches and passivity, jurisdiction depending, so it was quite a revelation to see your advice.

Unlike yourself I do not offer legal advice here. Rather I am intrigued by the basis of yours, particularly as wind power is know for its frequent opposition processes and more, world wide as well as for the substantial values in the IPR portfolios.

Very truly yours,
an anonymous non-US patent attorney
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Anonymous Coward, 26 Feb 2010 @ 8:19am

Re: A "has-been"?
The part about layoffs is somewhat incomplete. It seems to be true that Xerox has had some minor layoffs over the last two years. That seems to be changing. Recently Xerox announced layoffs of about 2500 employees worldwide. That would be about 5% of their workforce.

http://www.recessionwire.com/2010/01/22/layoffs-at-xerox-wayne-county-lloyds-nuclear-f uel-services-portland-school-district/

On the other hand, Google appears to be quietly laying off thousands of employees. Apparently, Google has about 10,000 employees not considered actual "employees," so their total employment may be more like 30,000 employees. So Google could be laying off up to 33% of their work force.

http://www.pcworld.com/article/154450/google_layoffs_10000_jobs_being_cut_report_claims.ht ml

Layoffs at Yahoo are more difficult to track, but it appears that Yahoo laid off about 25% of its work force back in 2008 when the recession first hit. They have had smaller ongoing layoffs since then.

Xerox may be a "has-been," but at least they have done a fantastic job of weathering the current downturn by keeping sales up and hanging on to employees, many of whom were likely highly trained. Would you rather work for Google as one of their thousands of "shadow employees" or would you rather work for Xerox?
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Richard, 26 Feb 2010 @ 8:25am

Re: Re:
It looks like a content creating spam bot. Only ... no link, maybe a test?

I see general themes from previous posts, top of the first page linked content (RtB references)...

On the other hand, It's almost noon and the words "and he was quite an angry one," leads me to believe that Riley is wasted again.

Get help man...
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Anonymous Coward, 26 Feb 2010 @ 8:28am

Seems Xerox is Alleging...
that Google and Yahoo might just have copied Xerox's invention. Xerox claims in their suit that both Google and Yahoo were aware of Xerox's patents and used the technology anyway. They are asking for damages for willful infringement. Be interesting to see if they can prove that.
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Brendan (profile), 26 Feb 2010 @ 8:39am

Re: Legal advice
Are you Icelandic, or retarded?
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crade (profile), 26 Feb 2010 @ 8:55am

Xerox is right. Although obviously they don't *have* to, but if the system is designed so that corporations can make money by abusing it they would be negligent not to do so.
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Christopher Weigel (profile), 26 Feb 2010 @ 9:03am

Re: Legal advice
I'm fairly certain the point, which appears to have gone completely over your head, is as follows: This is a patent which has never been implemented, used or developed by the associated company. It is, further, a patent lawsuit wherein Xerox has almost certainly been aware of the existence of Google and Yahoo for considerable lengths of time. Considering that the patent was never implemented, it seems hard to justify the idea of "patents encourage innovation" in this case (and most others, but I'll leave that can of worms alone for now). Absolutely no harm has been done to Xerox, as they've had well over a decade to identify infringement, construct a competing search engine, arrange licensing, or simply decide that the methods provided in their patent are better serving the needs of the community (including, in all probability, their own needs) by being implemented by another company. Furthermore, given the differences between Yahoo's and Google's function, the patents involved here are undoubtedly vague, and looking over the description thereof in the article seems to support this notion. In other words, Xerox has vague patents, which they've done nothing with, and they've waited almost a decade to act upon the alleged "infringement". This is precisely the sort of thing that makes we the "uneducated" (in terms of patent law) public think you and your fellow patent lawyers are, mostly, a particularly underdeveloped species of iguana.
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Christopher Weigel (profile), 26 Feb 2010 @ 9:05am

Re: Re: Legal advice
sorry, there were really supposed to be line breaks in this. As is, wall of text for the lose.
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Anonymous Coward, 26 Feb 2010 @ 9:39am

Re: Legal advice
If Xerox was actively working to license its rights, then during that period laches / estoppel would probably not apply. And besides, unless you are seeking equitable relief it isn’t much of a factor and patent is not equitable but statutory. I don’t think Mike was giving legal advice. He was giving business advice. A company doesn’t have to sue-there are other ways to handle it OUT OF COURT.
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Anonymous Coward, 26 Feb 2010 @ 9:46am

Re:
The business judgment rule most likely protects them from being found negligent as long as they had a reasonable basis for thinking another course of action would be better for the company as a whole.
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Anonymous Coward, 26 Feb 2010 @ 10:12am

Re: Re: Legal advice
Though at this point not one person had indicated whether Xerox attempted an OUT OF COURT solution to this situation. What the heck, if we are going to cast Xerox as the bad guy, then why not give a possible Xerox point of view.

Someone is analyzing the behavior of the allegedly infringing products and recognizes a feature of the behavior that is so identical to Xerox's patent that it appears unlikely to have been independently discovered. Perhaps some of Xerox's employees involved in the patent went to Xerox. Perhaps Xerox is miffed that they tried to sell the technology to Google and Yahoo, and after they tried to sell the technology, both companies thought the technology was such a great idea that they copied it.

Xerox is alleging willful infringement, claiming that both Google and Yahoo were well aware of the patent and continued to produce product in spite of being aware of the patent.
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crade (profile), 26 Feb 2010 @ 10:25am

Re: Re:
Sorry, I wasn't speaking legally, I meant in my opinion, and only if they thought that was the way to make the most money. I just don't think they have any responsibility to make it look like the system isn't broken unless it is in their best interest to do so.
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nasch (profile), 26 Feb 2010 @ 10:46am

Re: Re: Re: Legal advice
tl;read it anyway. :-)
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Anonymous non-US patent attorney, 27 Feb 2010 @ 7:24am

Re: Re: Legal advice
I am interested to know how you can know the patent was not implemented. This is technology that could be the basis for many things including , say, business intelligence systems where the workings of the patent would never be apparent to the user.

Also I am interested to know how Xerox has had over a decade to identify infringement given that the article states the patent was issued in 2004. Same article states that Xerox has been in contact with the other companies; it is not unheard that licensing discussions can take time. My questions on laches, estoppel and more still stands.

Sufficiency is however a requirement for a patent to be granted and a vague patent will therefore not survive in court. I would therefore be interested to hear exactly what you find vague.

While patent lawyers and also patent attorneys do not expect everyone to love us we perfer not to call our opponents for particularly underdeveloped species of iguana.
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Anonymous non-US patent attorney, 27 Feb 2010 @ 7:53am

Re: Re: Legal advice
> I don’t think Mike was giving legal advice. He was giving business advice.

The search tag near the top of the article is "Legal Issues", not "Business Issues". Moreover following that link leads to numerous articles by the same author.

> A company doesn’t have to sue-there are other ways to handle it OUT OF COURT.

Going to court is costly for all parts involved, it is more common to negotiate with a view to reach a license agreement. While I do not give legal advice here nor on the net, my most frequent advice to clients is to speak softly and reach an agreement. We have strict ethical rules that emphasises the clients.

However if no agreement can be reached your options are more limited and after failure at the negotiations it will be hard to plead ignorance of potential patent infringement which makes things more urgent.
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staff, 27 Feb 2010 @ 8:55pm

here I come
"There is no rule that you have to file a lawsuit to "protect" the patent."

So if I come to your house and throw your sorry ass out into the street, you would not sue me or try to stop me from doing so??

Masnick: I was completely wrong about you. You are the ultimate gentleman. Still...I'll be at your house tomorrow!!!
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Christopher Weigel (profile), 27 Feb 2010 @ 9:45pm

Re: here I come
huh? This is just an absurd comparison. I... don't even know how to respond.
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Anonymous Coward, 28 Feb 2010 @ 7:51pm

Re: here I come
I didn't know that it was humanly possible to willingly prove to everyone that you are *that* stupid.
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Ronald J Riley (profile), 28 Feb 2010 @ 8:04pm

fairure to Defend Patents Invalidates Them.
"Sorry, but that's no reason to file a lawsuit. It's a common cliche in patent lawsuits, but it's totally bogus. Of course you have other options. There is no rule that you have to file a lawsuit to "protect" the patent."

Mike Masnick continually spews drivel about patent issues. This is a perfect example. When infringement is found the patent owner usually tries to negotiate with the infringing party. When that fails they sue, and if thy do not sue they put the patent at risk of not be enforceable at all.

Some patents are valuable property and those are the patents which people do battle over.

America has suffered a serious economic decline the last few years because of dirty dealings by con artists in banking and insurance. Those con artists are part of the Coalition for Patent Piracy & Fairness along with like minded tech companies.

It is a fact that these companies ship staggering numbers of jobs out of America and it is also a fact that we cannot sustain our standard of living if we give away our inventions. This is what transnational corporations are trying to do and it is interesting that Mike Masnick and TechDIRT work very hard promoting destruction of patent rights.

There is no doubt that transnational companies will benefit from getting American ingenuity for nothing. The question is where does TechDIRT fit into this.

Ronald J. Riley,

I am speaking only on my own behalf.
Affiliations:
President - www.PIAUSA.org - RJR at PIAUSA.org
Executive Director - www.InventorEd.org - RJR at InvEd.org
Senior Fellow - www.PatentPolicy.org
President - Alliance for American Innovation
Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
Washington, DC
Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.
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Christopher Weigel (profile), 28 Feb 2010 @ 9:03pm

Re: fairure to Defend Patents Invalidates Them.
I'm seeing a lot of "facts" here. Any evidence to back them up? Because what I'm seeing is some combination of fear-mongering rhetoric, sweeping generalizations, and ad hominem attacks.

Further, the argument that has been forwarded before that the true defense of an industry is evolution. There's no intrinsic reason why we can't compete on equal footing with overseas companies. Likewise, has it occurred to you that perhaps other companies have ideas America can benefit from?

Finally, you're attacking a viewpoint that doesn't really exist. Intellectual property, in moderation, is a good thing. What Mike and everyone here is arguing against is the fact that a system ostensibly established to protect innovation and encourage evolution instead does the opposite, being used instead as a blunt instrument to discourage innovation, along with damage and/or destroy those American jobs you ostensibly hope to protect.

I find it truly telling that nobody speaking against the viewpoint expressed in the article has yet managed to produce a cogent, intelligible response. Do you really believe anyone here is so uneducated as to fall for populist, inflammatory rhetoric? Or is this simply a true example of the best arguments you can muster?
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Anonymous non-US patent attorney, 6 Mar 2010 @ 1:14pm

Re: Re: fairure to Defend Patents Invalidates Them.
> Further, the argument that has been forwarded before that the true defense of an industry is evolution.

There is no conflict between evolution and patenting, in fact novelty is one of the requirements for granting of a patent. Moreover the patent process does lead to publication and thus letting others build on your invention. Also a patent is time limited and the annuity fees increase with age of patent/application, further incentives to invent something even better to avoid being overrun by the competition. A patent should not be seen as a license to relax and cash in endlessly and the patent system is designed to reflect this.

> There's no intrinsic reason why we can't compete on equal footing with overseas companies.

That implies big ifs such as lowering salaries to become competitive with people in India, China, Vietnam and more. Some countries also have pollution regulations that are much cheaper to comply with than most western countries. These and more aspects are all reasons why equal footing can be more painful than the economic downturn we already face today. IPR is one means of getting a temporary exclusivity and obtaining a head start.

> Likewise, has it occurred to you that perhaps other companies have ideas America can benefit from?

IPR and licensing are closely connected and do indeed show that other companies have ideas America and other countries too can benefit from.

> ... a system ostensibly established to protect innovation and encourage evolution instead does the opposite, being used instead as a blunt instrument to discourage innovation ...

I cannot see that this follows. The system leads to publication of the inventions and encourages others to design better, though "designing around" also happens, particularly in the case of a badly drafted claim set.

Like possibly most patent attorneys across the world I started out with a technical degree and worked in industry. One place I worked we did not use the patent system, rather trade secrets were used big time and I worked on an invention that became central and still has not been reinvented. It allows this company to bring new products out to the market place far faster than others and as no patents are used and the invention is not visible from the outside the competitors do not know the trick and this firm thus enjoys an indirect monopoly that can last for decades. Had it been published it is very likely someone would have improved upon the invention.

That is the risk/benefit to be considered in the commercial world where you often need some time to gear up the use of your inventions: secrecy that someone else can reinvent or patenting where everything is published typically after 18 months.

Very truly yours,
An anonymous non-US patent attorney
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