This is a guest post by Jim Farmer, instructional media + magic inc. and contributor to Intellectual Property Magazine.
It was sunny day, 76 degrees, in Tyler, Texas on April 15th, 2011 when the jury foreman handed the single page decision to Judge Davis, U.S. District Court for the Eastern District of Texas [EDTX]. There were three questions and the jury’s answers. Did Google infringe Bedrock’s two patents? Yes. Were the patents invalid? No. How much did the jury award in damages? The jury “ordered Google to pay $5 million in damages for infringing a Linux-related patent held by Texas-based Bedrock Computer Technologies.”
Bedrock Computer Technologies is a non-practicing entity, sometimes called a patent troll, which seeks license revenue for patents in their portfolio.
Amy Miller wrote in Corporate Counsel:
Bedrock had sued Google in 2006, along with Yahoo, Amazon.com, PayPal, and AOL, alleging infringement of a Linux-related patent filed in January 1997. The patent describes “a method and apparatus for performing storage and retrieval,” and Bedrock said the companies had infringed it by using versions of the Linux operating system kernel on their servers. Bedrock has also asked for an injunction, but the court has not ruled on that yet.
Because of its wide use of the Linux operating system, the key words are “Linux-related patent.”
After the verdict a Google spokeswoman commented: “Google will continue to defend against attacks like this one on the open-source community. The recent explosion in patent litigation is turning the world’s information highway into a toll road, forcing companies to spend millions and millions of dollars defending old, questionable patent claims, and wasting resources that would be much better spent investing in new technologies for users and creating jobs.”
ZD-Nets Steven J. Vaughan-Nichols, in his column on the 21st of April, “Idiotic Anti-Linux & Google Patent Decision” opined:
I think this is an especially striking example of a bad patent decision by the EDTX. It only shows just how bad the U.S. patent system has become that such a ridiculous suit could ever be taken seriously never mind actually winning. Google should appeal this case and, unlike other recent software patent cases, such as Microsoft v. i4i, I’d expect the anti-patent side to win.
The educational community may remember the Acacia v. New Destiny Internet Group litigation. Acacia Media Technologies sent a Notice of Patent Infringement to many colleges and universities. Their patents broadly defined streaming media. The National Association of College and Universities outlined the alternatives available. Some licensed the patents rather than risk a much larger damage settlement should Acacia win.
IP Television Magazine described the Acacia tactics:
Acacia appears to be taking a bottom-up approach. Their strategy has been to keep royalty costs well under the threshold where litigation becomes a sensible option. Making it cheaper to buy a license than to fight in court is a sensible, if not entirely wholesome licensing approach.
When served with an infringement letter, many colleges and universities paid rather than chance the impact of litigation.
Continuing with their bottoms up approach, Acacia has more recently targeted educational institutions whose “distance learning” programs include the use of streaming video on demand. Acacia’s original infringement letter – made available on-line by the National Association of College and University Attorneys [NACUA] demanded the same 2% royalty on gross annual sales. A more comprehensive “e- learning” license agreement encompasses audio and video streaming and downloading. Following the example set forth by the porn industry, the NACUA (www.nacua.org) has established a common defence network among college counsel. In addition, the website www.fightthepatent.com provides a clearinghouse of information on the Acacia patents.
Steven J. Vaughan-Nichols’ strident opinion is likely shared by the academic community, as it was during Blackboard v. Desire2Learn. However his opinion about the success invalidating these two patents may be optimistic since there are now more than a thousand “Linux-related” patents; winning once is different from winning hundreds of time—then the odds are against you.
Oracle acquired Sun Microsystems patents and now Microsoft, Oracle, EMC and Apple have acquired 882 Novell patents. The German government required EMC not share in the virtual- environment patents, and Microsoft had to agree not to enforce their patents against open-source software because of Windows.
Vaughan-Nichols should also remember the East Texas District has been using “preponderance of evidence” for several months. Many anticipate this will be the Supreme Court decision in i4i v. Microsoft. Invalidating a patent then requires less evidence than “clear and convincing evidence” that has been used for patent infringement cases.
Non-practicing entities such as Ronald A. Katz Technology licensing (1,295 defendants the last decade), Acacia and Paul Ware (1,000), Geotag (454), the Massachusetts institute of Technology (297), Parallel Networks (274), Orion IP (269), and Electronics for Imaging (with MIT, 253) are examples of the volume of patent infringement suits that is increasing.
Bedrock v. Google was a clear warning to Linux users. Higher education should formulate a plan for defending against claims of patent infringement. Lack of attention will be costly.
