Does Google Have A Patent Problem... Or Does The Patent System Have A Google Problem?

from the oddities dept

Tue, Apr 5th 2011 10:04am — Mike Masnick

If you follow patents in the tech world, a good site to watch is LatestPatents.com, which highlights a few big tech companies, listing out the number of patent applications published each week and patents granted each week. What always strikes me is the differences in numbers between the companies. For example, last week, Google had seven patent applications published and seven patents granted. Compare that to Microsoft, which had 35 patent applications published and 40 patents granted. Apple had 21 applications published and 21 patents granted. IBM is, of course, king of them all with 122 patent applications published and 118 patents granted last week alone.

The numbers are pretty consistent, really.

Anyway, Google's patent policy is getting some attention as it's announced that it's bidding on Nortel's patents almost entirely as an attempt to keep them out of the hands of patent trolls. As we noted last year, all that's left of Nortel is a big patent portfolio, which we expected to end up with Intellectual Ventures or some other patent troll. However, Google is hoping to step in and explained its reasoning, noting that it would prefer real patent reform, but it recognizes that it may need to buy this portfolio as a defensive move to keep it from getting sued and hopes that it allows greater innovation.

Amazingly, patent supporters are interpreting this as being Google having to "catch up" on "patent ownership," as if the company has made a huge mistake in not going patent crazy in its early years. That entire article seems to take the position that not patenting everything was a "mistake" on Google's part, rather than a recognition that patents aren't necessary for innovation, and actually may be a hindrance to innovation. Now that Google is being pushed to shell out close to a billion dollars just to get some patents it doesn't really seem to want or need, shouldn't that be evidence that the patent system has a Google problem, in that Google didn't (and doesn't) really need patents to innovate, rather than Google having a patent problem?

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Filed Under: defensive patents, patents
Companies: google, nortel

33 Comments

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Michael, 5 Apr 2011 @ 10:17am

Sad State of Affairs
It's so unfortunate that Google is being forced to spend money on patents as a defense against litigation rather than spending it on innovation or starving children or something.

The only winners in our current patent system are the lawyers.
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:Lobo Santo (profile), 5 Apr 2011 @ 10:20am

Re: Sad State of Affairs
and the patent office! They must be making bank on all those 'application fees' and the behind-the-scenes 'approve my ludicrous patent' cash incentives...
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blaktron (profile), 5 Apr 2011 @ 10:20am

I wonder if the patent trolls/supporters even realize that while everyone else was patenting stuff, google was out building the fastest growing business in human history. I dont think it can be accurately stated that google is playing catch up in any field whatsoever.
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Anonymous Coward, 5 Apr 2011 @ 10:23am

I think Problems have a Patent Google. Or maybe the Patent system has problems Google?
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fogbugzd (profile), 5 Apr 2011 @ 10:23am

Worse than the Nuclear Option
Supposedly one thing that keeps big companies from suing each other on patent issues is the threat of the "nuclear option" where the defendant counters with by suing the plaintiff for violations of its patent portfolio. This deterrent only works if the plaintiff is actually producing products and innovating; if it is just a patent troll it is relatively immune to the nuclear option retaliation.

Google has generally not chosen to go with the usual massive portfolio needed to make the threat of the nuclear option credible. Google is doing something worse than the nuclear option. They are actually defending themselves on the merits of the case. If you sue Google and press them too hard, they are likely to defend the patent by trying to invalidate your patent or limit its scope. In the worst (or best) case scenario they might try to fight the patent system itself and invalidate an entire class of patents such as software patents. This is a risky strategy, but it is a credible threat against trolls as well as producing companies.
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blaktron (profile), 5 Apr 2011 @ 10:33am

Re: Worse than the Nuclear Option
Must be nice having infinite money that keeps rolling in no matter what you do :)
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Steven (profile), 5 Apr 2011 @ 10:36am

Re:
How about the patent system has a google problems?
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Anonymous Coward, 5 Apr 2011 @ 10:37am

Re: Worse than the Nuclear Option
The parallels with nuclear strategy are, indeed, uncanny.

Patents are like nuclear weapons. The practice of stocking up on patents is like the M.A.D. (Mutual Assured Destruction) strategy: if you fire all of your patents against me, I'll fire all of my patents against you and nobody wins, so we are both better off not attacking.

If I have more/broader patents than you, I can strike when/where you least expect it, giving me First Strike capability.

Patent trolls are like "rogue states". They have nothing to lose and everything to win, so they just fire patents at random, nuking everything on their path. They are the greatest threat to the "stability" of the patent system.

The only thing I am missing is where does Google fit in all this. Are they building a missile shield? Or perhaps working on a permanent patent disarmament treaty? Not sure yet.
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Michael, 5 Apr 2011 @ 10:40am

Re: Worse than the Nuclear Option
"they are likely to defend the patent by trying to invalidate your patent or limit its scope"

Unfortunately, that's the more expensive route. They are looking at this billion dollar purchase as a bargain defense against patent litigation from practicing entities - remember, NPE's have a lot less to lose in a patent battle.

That's crazy. If the patent system really worked, INNOVATION would be the best defense. Instead, it means you routinely have to go the incredibly long and expensive route of getting a bad patent invalidated or defending your invention as unique enough. It's cheaper to buy up a bunch of broad patents to threaten people with when they show up lookng for a handout.

I think our patent system is really a cleverly disguised protection scheme - probably being run secretly by the mafia.
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John Doe, 5 Apr 2011 @ 10:42am

Google has a congressional problem...
That billion $$$ would be better spent on congressman and senators so they could get reform.
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:Lobo Santo (profile), 5 Apr 2011 @ 10:56am

Re: Re: Worse than the Nuclear Option
Reminds of that awesome old game "Missile Command" where you had to shoot down incoming patents with explosive projectiles in order to protect your holdings...
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Mike42 (profile), 5 Apr 2011 @ 11:04am

Effects of patents on innovation
Hey, check this out! It's called a Hypertree, a really cool way to view releated data: http://en.wikipedia.org/wiki/Hyperbolic_tree

The only problem is, it's patented by Xerox until at least 2016. So the only software using it is HP Openview and some European academic projects.

See, patents foster innovation! Just like the Obama administration fosters transparancy, and government cuts foster job creation.
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Anonymous Coward, 5 Apr 2011 @ 11:08am

If you go bankrupt, your patents should be abolished. They shouldn't be sold to pay debt, patents give no innovative incentive to use those patents to pay creditors more of what you owe in opposed to paying them less of what you owe since you're going out of business regardless.

People don't get patents in hopes that, if/when they go out of business, they will be able to pay more of what they owe in opposed to paying less of what they owe, and so they should get more patents to innovate. Heck, people who get patents for innovative purposes probably don't exactly plan on going out of business to begin with.
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Anonymous Coward, 5 Apr 2011 @ 11:13am

Re:
and it's not like giving your patent to someone else after going out of business helps that other person invent anything. According to IP maximists, the patent already invented it, so there is no need for the patent to be transferred or sold over to someone else so that they can get a monopoly on something that they didn't innovate. It didn't give them incentive to innovate, since the person buying the patent invented/innovated nothing, they merely bough monopoly privileges, which isn't inventive or innovative. Better to give them incentive to invent/innovate by forcing them to get new patents on new inventions.
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Richard (profile), 5 Apr 2011 @ 11:22am

Re: Re:
Try googling patent problems
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Mike42 (profile), 5 Apr 2011 @ 11:56am

Re: Re:
I like it! A patent is a licensed monopoly, non-transferable.
Better than what we have now.
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Stuart, 5 Apr 2011 @ 1:01pm

Re:
No no no.
The Google Patent has System Problems.
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angry dude, 5 Apr 2011 @ 1:07pm

You are an idiot, Mikey
In the very beginning Google was almost entirely on the server-side, with no code exposed to the outside world:
Hence no need for patents to protect their technology and almost no exposure to patent threats

Contrast this to MShit or IBM with their heavy exposure on the client/equipment side of IT business

Still remember Netscape ?

I guess you don't - you were still going under your parents table to piss when they vanisned

They had great tech (at the time) but no patents
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angry dude, 5 Apr 2011 @ 1:12pm

Re: Re: Re:
Hillarious, punk

non-trasferrable patents will immediately kill all employment contracts in high-tech industry

Ever signed IP clause in non-compete agreement ?

Without transferrable IP scientists and engineers wil have to be chained to their corporate employers
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angry dude, 5 Apr 2011 @ 1:15pm

Re:
PATENTS ARE PROPERTY

Just like any other property

And property is the foundation of this capitalistic society

Write it in large letters on your stupid forehead, punk
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Mike Masnick (profile), 5 Apr 2011 @ 1:26pm

Re: You are an idiot, Mikey
Still remember Netscape ?

I guess you don't - you were still going under your parents table to piss when they vanisned

Funny. I started writing Techdirt when Netscape was still the dominant browser. But, you know, you're not big on facts.

They had great tech (at the time) but no patents

Um. No. They didn't. It's amazing how you rewrite history. Netscape had good technology, that became MASSIVELY bloated by version 4, when the company focused on a disastrous business model idea. That allowed Microsoft to step in instead. It had nothing to do with patents.

Angry dude, it's okay for you to be angry. But making up stuff? That's just silly.
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Anonymous Coward, 5 Apr 2011 @ 1:44pm

So the PageRank patent had absolutely nothing to do with Yahoo! Paying Google to provide it's search results in the early years of the company rather than just implementing it on their own?
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xs (profile), 5 Apr 2011 @ 1:54pm

Re: Re: Re: Re:
You must have some very wacky IP clauses in the non-compete agreement you signed. Non-compete are designed to stop people from taking confidential information belonging to Company A and use it at work for Company B. It has nothing to do with patents, ownership of patents, and transferability of patents.

If the IP was not developed by the scientist/engineer, then the change to IP's transferability doesn't impact him one way or the other.

If the IP was developed by the scientist/engineer, but owned by the company, then this change wouldn't impact him one way or the other.

If the IP was developed by the scientist/engineer, and owned by him personally, then the IP rights just go with him when he changes job regardless of its transferability. so the change still doesn't impact him one way or the other.

If the IP is jointly owned by scientis/engineer and the company, then they would still share the ownership of the IP after he changes job, still isn't impacted by the change.
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Anonymous Coward, 5 Apr 2011 @ 2:03pm

Re: Re: You are an idiot, Mikey
And, eventually, Netscape became Mozilla Navigator (or something like that, I don't remember very well), which eventually became Firefox. Firefox was actually spawned from an effort to remove all of the bloat from the Mozilla browser. And now look at it: it is leading the browser wars (although if it keeps up adding bloat, it will soon go down the same way Netscape went).

If patents were in effect, we'd probably still be stuck with bland, crappy, bloated browsers that could only render HTML 1.0. Yay.

I agree that the downfall of Netscape had nothing to do with patents (or lack of them). IE was just the better browser (I can't believe I just said that). Basic market forces were what killed Netscape.
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Anonymous Coward, 5 Apr 2011 @ 6:31pm

Re: Re: Re: Re:
"Without transferrable IP scientists and engineers wil have to be chained to their corporate employers"

No they don't, not if the law says they don't.
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Anonymous Coward, 5 Apr 2011 @ 6:38pm

Re: Re: Re:
While I believe that patents should largely be abolished or retracted, the above isn't arguing that patents should be non- transferable (and it's not arguing that they shouldn't be). It's merely arguing that allowing their transferability to exist when a company/debtor is going bankrupt/out of business as a means of paying your creditors makes no sense in light of the alleged purpose of patents, which is to promote the progress. They're not a means to help pay debt, they're a means to promote the progress, and the argument that using them to pay debt can incentivize a company that's going out of business anyways makes no sense. They're going out of business regardless, what do they care if they pay back $100 of what they owe or $1000 of what they do?
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Anonymous Coward, 5 Apr 2011 @ 6:38pm

Re: Re: Re: Re:
(because, either way, they're liquidating all of their assets and so it makes no difference to them).
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Anonymous Coward, 5 Apr 2011 @ 6:39pm

Re: Re: Re: Re:
of what they do owe *
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Anonymous Coward, 5 Apr 2011 @ 6:47pm

Re: Re:
"PATENTS ARE PROPERTY"

If they're property merely because you define them as such, then your arguments must take into consideration the distinction between property as defined by you and property as defined by others.

"Just like any other property"

Cars are buses, just like any other buses. Fine, lets define a car as a bus. There are differences and if I want to discuss buses and call them cars then my discussions need to make such distinctions where such distinctions apply.

"And property is the foundation of this capitalistic society"

If intellectual property is an important aspect of this capitalistic society, then you have to show that this capitalistic society can't be replaced by a better capitalistic society without patents. I argue that it can.
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Anonymous Coward, 5 Apr 2011 @ 6:58pm

Re: Re: Re:
(or if I want to discuss cars and call them buses)
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angry dude, 6 Apr 2011 @ 6:41am

Re: Re: Re: Re: Re:
Punk,

you have no clue just like the rest of this stupid crowd

Patents are ALWAYS owned by inventors initially but get implicitly assigned to their corporate employers when an inventor signs an IP clause (usually on the very first day of employment)

This is a very standard practice in high-tech - there is no way to avoid it

IP clause can be very comprehensive, downright scary - they want to own you outright. THis is especially true with larger companies like Mshit, IBM etc.

That's the reason I stay away from large tech companies - this way at least I can own things I do in my spare time, even if costs me money in terms of paycheck
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staff, 6 Apr 2011 @ 9:06am

we�re not going to pay
Call it what you will...patent hoarder, patent troll, non-practicing entity, etc. It all means one thing: �we�re using your invention and we�re not going to pay�. This is just dissembling by large infringers to kill any inventor support system. It is purely about legalizing theft.

Prior to eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the Supreme Court decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now some of those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don�t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back in the patent system with injunctions fully enforceable on all infringers by all inventors, large and small.

For the truth about trolls, please see http://truereform.piausa.org.
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patent litigation, 11 Apr 2011 @ 3:59pm

"defensive"?
Since Intellectual Ventures started suing, I now completely disbelieve the claims of any business entity that it is buying up patents for "defensive purposes only." However, even when it does inevitably start suing, Google will likely be able to evade the "patent troll" label (and thus take advantage of judicial preference for "practicing" entities over NPEs/PAEs), since it also engages in R&D. Clever.
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