Thursday, April 21, 2011

Texas jury finds against Google in Linux patent case, determines damage award of $5,000,000

A jury in the Eastern District of Texas handed a verdict in favor of Bedrock Computer Technologies LLC, determining that Google infringes a Linux-related patent, that the patent is valid, and that Google should pay $5 million for past infringement (through the trial date). The jury took this decision on April 15, 2011, and yesterday (April 20, 2011) the verdict form became accessible via the court's electronic document system.

Google can easily afford $5 million if it has to, but this patent infringement case has major implications for the IT industry in general and for Linux in particular. The plaintiff identified a portion of the Linux kernel as part of the "Accused Instrumentalities". Many companies using Linux have already been required by the patent holder to pay royalties, and many more will now, based on this jury verdict, elect to pay.

At least indirectly, if not directly, this also has ramifications for Google's Linux-based Android mobile operating system, as I'll explain further below. The industry-wide importance of this case is underlined by the fact that Red Hat intervened in this case (because several of its Red Hat Enterprise Linux customers were sued) and filed a declaratory judgment suit with the same court, attempting to have the patent declared invalid.

The infringement accusation and the patent-in-suit

The accused infringement relates to the Linux kernel itself, which is at the core of Google's server farm. The complaint named a long list of allegedly infringing Linux versions, starting with the 2.4.22.x tree all the way to version "2.6.31.x, or versions beyond 2.6.31.x."

The patent-in-suit is U.S. Patent No. 5,893,120 on "methods and apparatus for information storage and retrieval using a hashing technique with external chaining and on-the-fly removal of expired data". Bedrock filed its suit in June 2009 and named Softlayer Technologies, CitiWare Technology Solutions, Google, Yahoo!, MySpace,, PayPal,, AOL and the CME Group as defendants. A couple of those defendants are -- like Bedrock itself -- small entities based in Eastern Texas who may have been named primarily for the purpose of keeping the entire case in that particular court district. It appears that the allegations against Google were the first ones in this suit to go to on trial.

Verdict form

Here's the jury verdict -- I'll explain and comment below the Scribd document viewer:

11-04-15 Verdict Form Bedrock v. Google

The first part means that Google is deemed to infringe claims 1 and 2 of the patent-in-suit. Those claims are:

1. An information storage and retrieval system, the system comprising:

  • a linked list to store and provide access to records stored in a memory of the system, at least some of the records automatically expiring,

  • a record search means utilizing a search key to access the linked list,

  • the record search means including a means for identifying and removing at least some of the expired ones of the records from the linked list when the linked list is accessed, and

  • means, utilizing the record search means, for accessing the linked list and, at the same time, removing at least some of the expired ones of the records in the linked list.

2. The information storage and retrieval system according to claim 1 further including means for dynamically determining maximum number for the record search means to remove in the accessed linked list of records.

The way I interpret these claims, they are more likely to be used on the server than the client side of a network. The data structures in question may also be used by some client-side applications. Whether the infringing Linux code is likely to be used on the client side is a question I have not yet been able to evaluate.

After determining that the patent is infringed by Google, the jury then dismisses Google's invalidity defense and considers $5,000,000 to be an appropriate award for past damages (i.e., for the period ending on the trial date).

As far as those three issues -- infringement, validity, damages -- are concerned, the jury is in charge. The jury is, collectively, the judge on these matters of fact. The judge himself is in charge of matters of law, not of matters of fact. I don't know whether there's any possibility that the judge could decide differently from this particular verdict -- if it's possible, it's at least not too likely.

Evidence standard for invalidity

It's worth noting that Google's invalidity defense failed even though the evidence standard used in this case was preponderance. In the jury instructions, the judge explained that concept to the jury as follows:

"When a party has the burden of proof on any claim or defense by a preponderance of the evidence, that means the evidence must persuade you that that claim or defense is more likely true than not true.

There was a Supreme Court hearing this week on a petition by Microsoft (in the i4i case) to use this evidence standard for the invalidation of patents in such contexts, while i4i wants a substantially higher hurdle (the clear-and-convincing evidence standard) used and has the support of the U.S. government for that.

In other words, Google failed to invalidate the patent even though a more defendant-friendly standard -- the one also advocated by Microsoft -- was used than the one preferred by the US government and the Court of Appeals for the Federal Circuit (CAFC).

Implications for Linux users and distributors

Like I said further above, the question of Google possibly having to pay $5 million (unless the judge decides otherwise or an appeal succeeds) is not really the issue. In addition to money, Bedrock also asked for an injunction, and now that Google has been found to infringe a patent deemed valid by the jury, it remains to be seen whether an injunction will be granted either by this court or on a possible appeal.

The problem is that Bedrock is now in a pretty strong position to collect royalties from other Linux users, especially those utilizing Linux for large server operations.

Red Hat has previously had to pay royalties to patent holders, but in connection with JBoss, not Linux. JBoss is also published under the GNU General Public License. I discussed Red Hat's dealings with "patent trolls" in this blog post. This here may be yet another case in which Red Hat will feel forced to pay patent royalties on GPL'd software, and in this case, on Linux itself.

Implications for Android

Concerning Android, I wouldn't rule out that maybe some of the hundreds of thousands of Android applications out there use the teachings of the infringed patent claims in one way or another. Even if that is not the case, Google might have to modify the Linux kernel it distributes with Android in order to remove the infringing code because otherwise there's always the risk of contributory infringement should any app make use of that portion of the Linux kernel.

More generally, this doesn't bode well for the 41 Android-related patent infringement suits that are going on at this stage. For example, if Google can't defend itself successfully against one patent held by a little non-practicing entity from Texas, what does this mean for Oracle's lawsuit over seven virtual machine patents? This shows that having deep pockets to afford the best lawyers isn't enough. Google's answer to Bedrock's third amended complaint was submitted on February 10, 2011 by the Texas-based firm of Potter Minton and the top-notch global firm of Quinn Emanuel Urquhart & Sullivan, which also defends certain Android device makers (such as Motorola and HTC) against Android-related patent infringement allegations.

Next steps

This jury verdict is an important development and an indication of what will most likely be the decision with respect to Google. But this case as well as Red Hat's parallel declaratory judgment case are not yet finished, and maybe there will be an appeal. I guess Bedrock will be quite successful in the meantime working out license deals with Linux users and distributors. In Red Hat's case, Bedrock made third-party counterclaims against alleged infringers, and a couple of them settled with Bedrock, quite likely by paying royalties. It seems that Bedrock is sitting on a patent gold mine and likely to make a fortune, thanks to the patent system on the one hand and the Linux kernel on the other hand.

I will follow further developments in connection with this patent and report again if anything significant happens. What has happened already is, without a doubt, highly significant.

Finally, I'd like to thank Docket Navigator for making me aware of this jury verdict. They offer a great service.

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