Thursday, February 14, 2013

Google files first patent infringement suit in company history to hit back at BT

The next time Google founder and CEO Larry Page is asked about his company's stance on patent litigation he won't be able to repeat what he said at the Google Zeitgeist conference in September 2011: "We've never sued anyone over patents."

When Mr. Page made this claim, the statement had to be interpreted rather narrowly to be considered accurate. A few weeks earlier HTC had sued Apple over nine patents it received from Google for this purpose. The deal structure was so unlike a genuine patent purchase that the ITC later threw out all Google patents HTC was trying to use against Apple in that forum.

A few months after that Zeitgeist talk, in January 2012, Google authorized a Motorola Mobility lawsuit against Apple over six patents in the Southern District of Florida. The merger agreement was publicly available and absolutely unequivocal about the fact that Motorola needed Google's consent prior to bringing new IP assertions while the merger was under antitrust review. Since May 2012 Motorola Mobility is a wholly-owned Google subsidiary, so any patent infringement suits Motorola Mobility may have brought somewhere in the world since the closing of the deal would also have to be viewed as a Google patent lawsuit. Other jurisdictions are not as transparent as the United States, so I wouldn't rule out that some Motorola lawsuits filed against Apple and/or Microsoft since the closing of the deal will surface somewhere.

But as of yesterday, one doesn't even have to evoke HTC or Motorola to find an example of Google suing someone over patents. Yesterday Google filed a patent infringement complaint against BT (British Telecom) in the Central District of California (that's basically L.A.) over four patents. CNET published the complaint. Reuters was first to report, and its story indicates that there's actually been more than just this one Google lawsuit, mentioning a filing by Google's Motorola Mobility as well.

Two of the patents-in-suit, U.S. Patent No. 5,581,703 and U.S. Patent No. 5,701,465, relate to "reserving system resources to assure quality of service". These two patents were acquired from IBM, as was U.S. Patent No. 7,460,558 relating to "connection capacity reassignment in a multi-tier data processing system network". The fourth patent-in-suit, U.S. Patent No. 6,807,166 on a "gateway for internet telephone", originally belonged to Fujitsu.

In a press statement quoted by multiple reports Google justified its departure from its (save Motorola and HTC) defensive policies of the past with the fact that "BT has brought several meritless patent claims against Google and our customers -- and they've also been arming patent trolls". I reported on BT's six-patent lawsuit in December 2011, allegations by Google (filed in October 2012) that a non-practicing entity named Suffolk Technologies was suing it as a front for BT, and last month another NPE, named Steelhead Licensing, asserted a (former) BT patent against many industry players, including several Android device makers, one of which is Google's Motorola Mobility.

Considering that Google complained about BT "arming patent trolls" it would have been more appropriate for Google to sue BT, or have third parties sue BT, over homegrown Google patents. But Google is asserting three former IBM patents and one former Fujitsu patent. Google's statement does not explain why it's fine for IBM and Fujitsu to arm Google but unacceptable that BT sells some of its intellectual property to third parties (no matter what the intentions behind such transactions may be).

Credibility is a lesser concern here. The biggest problem Google's first offensive patent lawsuit in its own name faces is a tactical one called asymmetric exposure. Google is suing BT in the US and the UK. In the US there are some parts of BT's global multiprotocol network and it's selling certain services there, but it's not its largest market, while the US is the largest market for Google. Google is also suing BT in the UK, which is obviously BT's number one market, but the UK is a jurisdiction in which patent holders rarely win, and if they win at all, it's not a country where you have juries that render billion-dollar damages verdicts.

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