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08.21.12

Google Embraces USPTO and Patent Litigation Rather Than Fight the Broken System

Posted in GNU/Linux, Google, Patents at 10:45 am by Dr. Roy Schestowitz

Broken policy

Broken glass

Summary: Hopes that Google will bring change to the system are diminished further as the USPTO and ITC become partners to Google

THE abundant desire Google has to control information has led it to helping the USPTO and EPO; we criticised Google for that. According to this article, among others, Google is still servicing the USPTO. Pamela Jones gave some details and Google bragged about it.

“We are conflicted about this because Google is now fighting fire with fire, which does little or nothing to get a real reform.”Through Motorola with all of its patent ammunition Google is now suing Apple. It is a Google subsidiary doing this and it is definitely reactionary because it was Apple which approached the ITC first. To quote: “Google Inc. (GOOG)’s Motorola Mobility unit said it filed a new patent-infringement case against Apple Inc. (AAPL) claiming that features on some Apple devices, including the Siri voice-recognition program, infringe its patents.

“The complaint at the U.S. International Trade Commission claims infringement of seven Motorola Mobility patents on features including location reminders, e-mail notification and phone/video players, Motorola Mobility said yesterday. The case seeks a ban on U.S. imports of devices including the iPhone, iPad and Mac computers. Apple’s products are made in Asia.

““We would like to settle these patent matters, but Apple’s unwillingness to work out a license leaves us little choice but to defend ourselves and our engineers’ innovations,” Motorola Mobility said in an e-mailed statement. ”

We are conflicted about this because Google is now fighting fire with fire, which does little or nothing to get a real reform. In a sense, any chances Google may have had to complain about the USPTO are being invalidated by these recent moves that demonstrate hypocrisy. Although Google uses deterrence against real attacks the reaction is harming many FOSS players. It makes Google appear as complicit.

“It makes Google appear as complicit.”Why not smash the USPTO rather than play along? The US patent system is being further discredited by patents on genetics, as they were recently validated further. As one critic of the USPTO put it: “One of the bizarre things about the patent system is the “presumption of validity,” in which a patent officially has to be presumed valid. Conceptually, this makes very little sense. Patents grant a pretty broad monopoly on “inventions” for an extended period of time… based entirely on approximately 18 hours that a patent examiner has to spend looking over the thing. Do we really think that a patent examiner gets things right most of the time? It seems that even the US Patent Office’s own data shows that’s simply not true. A friend pointed me to the USPTO’s recently released data concerning re-exams (pdf and embedded below), which demonstrates in great detail why patents shouldn’t be presumed valid. Basically, the data suggests that an awful lot of patents were handled poorly.

“The document notes that 92% of re-exam requests are granted — meaning that nearly all re-examination requests lead to a re-examination by the Patent Office. So, if most patents were well constructed in the first place, you would imagine that most of them would come through the re-examination process unscathed with no changes, right? Only if patent examiners were really bad at their jobs would a large percentage of patents need to be changed or rejected completely on re-exam. Given the “presumption of validity” that grants a monopoly, and the massive dollar amounts that patents sell for and are able to extract in settlements, you’d think that re-examined patents must normally confirm the original diagnosis. Hell, given that information, I’d hope that at least around 95% of patents, having passed the approval process, would be solid enough to survive the re-exam process untouched.”

“If only Google helped… its lobbyists are too busy making privacy laws more lenient.”The USPTO should become obsolete if its ability to identify new inventions in a fast-moving market is impaired to this degree.

Demonstrating a waste of already-limited resources is the KDE project, which previously needed to worry about Apple patents (we covered some examples) and now considers so-called ‘defensive publications’. To quote a prominent developer: “Software patents are an evil thing which should die a horrible and painful death. Until that moment, recording prior art in a way that is understood by the system is an effective way to fight patents. By recording prior art in the form of defensive publications, we can make it much harder for a patent to be granted — and it does not have to be hard at all to do so.”

How about writing code and just helping abolition of software patents? If only Google helped… its lobbyists are too busy making privacy laws more lenient. By law (shareholders), Google is required to do only what’s good for itself.

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3 Comments

  1. mcinsand said,

    August 21, 2012 at 11:15 am

    Gravatar

    Pablo Chavez wasn’t exactly embracing our (the US’) broken patent system, this isn’t the only time someone from Google has correctly called software patents a problem. It’s tough to give them a total pass, but I do get their predicament. They are walking a fine line between keeping their powder dry and trying to find a better way to end this senseless war. One problem is that Google can lose the defenisve value of their patents if they do not handle the fight against our broken system correctly. Say a truly evil, freedom-hating, honesty-hating (remember the doctored photos?) company like Apple sues and Google tries to countersue from their arsenal. Public statements calling out software patents as worthless can give Google a problem; a judge can well tell them that they can’t balance a suite over billions with patents that they have publically called worthless.

    Google may not have totally succeeded in their do no evil policy, but they are doing better than I was optimistic to hope for (still, far, far preferable than Apple’s seeming success at a do only evil policy, as I see it). However, I do think they have behaved admirably. They are what we have needed as MS and Apple are looking to maintain their duopoly. Neither company outgrew their hobbyist-level beginnings, but they have carved out their turf, and that turf is threatened. MS is for those that need choice, broad hardware support, and are willing to accept poor reliability and security. For those that need reliability and security, but have no need for choice or hardware support, there is Apple. Now, we have FOSS, that offers hardware support, choice, security, and reliability, so only those with egos tied up in their toys will ‘need’ Apple (no-one needs MS). For too long now, they have been able to bully people out of business using bogus patents and a complicit USPTO. Google is too capitalized for threats to run them out of business, and they are not willing to join in the Apple/MS collusive joint venture.

    Google may not be perfect, but they are still doing a good job of opening up the markets.

    Dr. Roy Schestowitz Reply:

    Not all markets. There is also an element that limits choice.

    Google is not the main problem, I agree with you on that. But we need to urge Google to do more to stop software patents.

  2. mcinsand said,

    August 22, 2012 at 9:26 am

    Gravatar

    I think that, intentionally or not, Google’s actions have further bolstered their efforts against software patents and the industry terrorism that Apple and MS have used to maintain duopolistic dominance. This morning, there was a bit more in a Groklaw News Pick. Now, after having been victorious against Oracle, their statements against software patents have more credibility. They fought and won, and they are speaking against software patents. Had they lost, I can see dismissal as the whining of a sore loser. They are succeeding, but they are also stepping it up to fight what they see as holding the industry back.

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