Sunday, August 29, 2010

The Patent Battles Have Begun

2 recently filed, and large, patent cases have made the news lately.  NPR referred to one of them as the "a full employment act for patent attorneys."

Interval Licensing LLC v. AOL, Inc. et al, Case No. 2:10-cv-01385 (W.D. Wash)

Paul Allen (co-founder of Microsoft), sued 11 companies.  You know all of them:  Apple, AOL, eBay, Yahoo, Google, Netflix, Staples, YouTube, Facebook, Office Depot, and Officemax.  Allen's company is asserting 4 patents:
  • U.S. Patent No. 6,263,507: "Browser for use in navigating a body of information, with particular application to browsing information represented by audiovisual data"
  • U.S. Patent No. 6,034,652: "Attention manager for occupying the peripheral attention of a person in the vicinity of a display device"
  • U.S. Patent No. 6,788,314: "Attention manager for occupying the peripheral attention of a person in the vicinity of a display device"
  • U.S. Patent No. 6,757,682: "Alerting users to items of current interest"
You'll note 2 of the patents (the '652 and '314 patents) have the same title.  The '314 patent is a continuation of the '652 patent.

For those of you who don't deal with patents, the key information that will be debated is the scope of coverage of the claims of the patents.  And these 4 patents have a lot to fight about.  The '507 patent has 129 claims, the '652 patent has 18, the '314 patent has 15 and the '682 patent has 20.  That's 182 patent claims potentially at issue.  As a sampling, the 1st claim of the '507 patent provides:

A system for acquiring and reviewing a body of information, wherein the body of information includes a plurality of segments, each segment representing a defined set of information in the body of information, the system comprising:
means for acquiring data representing the body of information;
means for storing the acquired data;
first display means for generating a display of a first segment of the body of information from data that is 5 part of the stored data;
means for comparing data representing a segment of the body of information to data representing a different segment of the body of information to determine whether, according to one or more predetermined jrj criteria, the compared segments are related; and
second display means for generating a display of a portion of, or a representation of, a second segment of the body of information from data that is part of the stored data, wherein the second display means displays the portion 15 or representation of the second segment in response to the display by the first display means of a first segment to which the second segment is related.
Thus, there are at least 5 main limitations to this system claim.  And each of those 5 are likely written in means-plus-function form governed by 35 U.S.C. § 112, ¶ 6.  So Interval will have to show what function is performed by the limitation, and then explain what structural elements in the specification are there to perform that function.  And since this is a software issue, Interval will need to show that the specification adequately discloses enough of an algorithm for performing the limitation.

That's a lot of stuff to fight about.  This will certainly generate a lot of work for patent attorneys.

NPR questioned the timing of why Allen waited approximately 10 years to file this dispute.  No answer to that question.  Pure speculation, but I think that the Supreme Court's Bilksi decision could have been a small factor here, as had the Court tanked all software claims, this case wouldn't have begun.  This will certainly be an interesting one to watch.

Oracle America, Inc. v. Google, Inc. Case No. 4:10-cv-03561 (N.D. Cal.)

This is certainly a clash of the titans.  And Oracle isn't playing around.  Lead counsel is David Boies.  He's a serious trial attorney.  He represented Al Gore in Bush v. Gore.  He just scored a victory challenging California's prop 8.  Oracle is taking this seriously.  Oracle views Google's Android as a threat to Oracle's Java (which it acquired from Sun). It's asserting 7 patents:

  • U.S. Patent 6,125,447: "Protection domains to provide security in a computer system"
  • U.S. Patent 6,192,476: "Controlling access to a resource"
  • U.S. Patent 5,966,702: "Method and apparatus for preprocessing and packaging class files"
  • U.S. Patent 7,426,720: "System and method for dynamic preloading of classes through memory space cloning of a master runtime system process"
  • U.S. Reissue Patent 38,104: "Method and apparatus for resolving data references in generated code"
  • U.S. Patent 6,910,205: "Interpreting functions utilizing a hybrid of virtual and native machine instructions"
  • U.S. Patent 6,061,520: "Method and system for performing static initialization"
Oracle is also asserting copyright infringement for the code, documentation, specifications, libraries, and other materials that comprise the Java platform.  Oracle's allegation is that the Android operating system is built on top of Java, and is distributed with a Java Virtual Machine (the Dalvik VM).

Collectively, there are well over 100 claims potentially at issue.  This will be a big fight.  Stay tuned.

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