The Prior Art

The Prior Art Blog: Closed till January

I'm taking a much-needed vacation. I have a couple things in the works I was thinking of time-releasing over the next week or two, but on second thought have decided that my great thoughts will just have to wait until 2009 before being released onto an unsuspecting world.

The Prior Art is just over a year old, and readership has grown greatly in that time. Thanks to all my loyal readers, and my intermittent readers, and the even the searchers who just spent a few minutes here, and the folks who translated my blog pages into Japanese and Russian and Greek, which looks cool and is part of what makes this whole enterprise worthwhile and mysterious and fun. Happy holidays, and I'll see y'all in the new year.
 

The Gnu heads to court, files lawsuit against Cisco

The Free Software Foundation filed its first-ever copyright lawsuit yesterday, against Cisco Systems. The FSF accuses Cisco of not complying with the terms of the FSF's popular viral license, the General Public License, in the company's Linksys line of products. Anyone who distributes software or products that are GPL-licensed must provide source code when distributing it; by falling down on the GPL-vigilance front, "Cisco has denied its users their right to share and modify the software," say FSF lawyers.

The non-profit FSF has never before gone to court as a plaintiff to enforce the GPL, the license that founder Richard Stallman has called his "hack" of copyright law. But it has provided pro-bono legal services to open source developers who want to enforce their own GPL'd code, most notably in the BusyBox litigations.

A Cisco spokesperson stressed the company's commitment to open source, and responded that "We are currently reviewing the issues raised in the suit but believe we are substantially in compliance. We have always worked very closely with the FSF and hope to reach a resolution agreeable to the company and the foundation." (via Ars Technica)

Data from Stanford shows 2007 spike in patent defendants

Stanford Law School has unveiled its IP Litigation Clearinghouse, which includes data on 78,000  copyright, patent, trademark, and trade secret lawsuits. That includes 23,000 patent suits, and the patent data has just been made public. I can already tell this will be a great tool that I'll use a great deal, and I look forward to seeing what others come up with.

My colleague Zusha Elinson at the Recorder attended Stanford's event unveiling the IPLC. His article about the IPLC, published yesterday, is worth reading. Initial statistics show that there was indeed a real spike in the number of defendants sued in 2007; that spike may not be repeated in 2008. See graph below. This data generally confirms the estimate calculated by Rick Frenkel earlier this year. It also confirms the anecdotal evidence I reported in the IPLB 2008 Patent Litigation survey. Lemley attributes this spike to a rush by holding companies to file suit before any patent reform legislation took effect.

Stanford Law Professor Mark Lemley (pictured), who was a driving force behind the IPLC, also said he's teaming up with Intellectual Ventures founder Nathan Myhrvold in order to classify exactly who is filing all the patent infringement lawsuits. I'll be watching that project, which sounds like it could be like a Troll Tracker blog on steroids. Lemley and Myhrvold, it should be noted, have very different views about the patent-holding companies some deride as "patent trolls." Stanford's IPLC announcement has much more information about the project.

Troll Tracker update: Frenkel told the truth, says Cisco

On Friday, Cisco Systems unsealed its motion for summary judgment in the Albritton v. Cisco Systems defamation lawsuit, one of two libel lawsuits suits filed against ex-Troll Tracker blogger Rick Frenkel and his then-employer, Cisco.

There's a lot of information here, but the takeaway point is this: Cisco says Frenkel's articles were accurate. And in the United States, of course, you're allowed to publish true information, even if it hurts someone. What Albritton said was defamatory was either true (the docket was altered), or fell into the categories of opinion and rhetoric (words like "conspiracy") or just wasn't about him, says Cisco's lawyer, Charles Babcock of Jackson Walker.

Cisco also argues that Albritton's reputation wasn't injured at all by Frenkel's two articles, which involve a changed filing date in the ESN v. Cisco Systems lawsuit. As for co-defendants John Noh and Mallun Yen, the company  says they had no role writing, reviewing, editing, or publishing Frenkel's articles.

Polaris IP, suing Google, argues for wide-ranging discovery

On Friday, I wrote about how lawyers working for Polaris IP (Erich Spangenberg) want to use the discovery process in Polaris IP v. Google to learn more about Google's patent reform efforts. Google asked for a protective order; now Spangenberg's response is available. [PDF via Justia]

What's the relevance? Polaris lawyers want to know "Google’s views and efforts relative to the Accused Instrumentalities being able to use the patented technology of others without providing damages adequate to compensate for the infringement." The "Accused Instrumentalities" are the Google products Spangenberg believes he should be paid a royalty on: Google Search, AdWords, and AdSense.

If I hadn't recently watched a patent trial (almost) in its entirety, I think I'd have a hard time understanding what Polaris might be after. But now I can imagine the deposition clips that a skilled lawyer could get from this: "Do you really expect this jury to believe that Google respects patent rights? Isn't it true that Google doesn't want to pay when it uses other people's intellectual property? Didn't Google spend millions lobbying Congress to get the penalties for using other people's intellectual property reduced?" ... and so on.

Spangenberg lawyers want to dig into Google's patent reform efforts

Polaris IP, aka Bright Response, is an arm of Erich Spangenberg's patent-holding empire. In one of its lawsuits, filed August 2007, it targeted Google, Yahoo, AOL, and IAC/InterActiveCorp, accusing them of infringing U.S. Patent No. 6,411,947. This patent, which is on natural language processing, became somewhat infamous after it was targeted by EFF's Patent Busting Project. EFF has the prosecution history of the patent on its web site. Spangenberg companies now own the entire interest in this patent.

In this litigation, Polaris and Google are presently engaged in an interesting discovery dispute. Polaris wants to learn all about Google's lobbying efforts in favor of patent reform, by making the search giant hand over any related documents on the subject, and depose its top patent lawyer about lobbying efforts.

Last month, Google lawyers responded, saying that the company's lobbying efforts are entirely irrelevant to the Polaris lawsuit. Even if the lobbying was relevant, Google claims it has a First Amendment right to lobby the government, and that should protect it from discovery on this issue. 

Illinois judge sees the infra-red light, finds patent lawsuit frivolous

Frequent patent defendants say they're hit by frivolous lawsuits all the time. But it's very rare for a judge to find a patent lawsuit to be frivolous enough to grant sanctions and attorney's fees.

It happened last week in Peoria, Illinois. A company called Triune Star owns patent 6,122,521, which covers a camera with a GPS locator in it. But it only covers infrared cameras, a limitiation that the patent examiner insisted on adding in order to grant a patent. Patent was granted in 2000, and lawsuit was filed in September 2007 against telephone manufacturers LG Electronics and Pantech, as well as Disney, which partnered with them to sell "family phones" with GPS locators that parents could use to track their kids. The service ran from mid-2006 to end of 2007 before it was shut down.

Lawyers getting patents: What should the rules be?

I've written several times about patent lawyers who acquire and assert their own patents. Now I'm going to use the blog to ask for folks' opinions and thoughts on this issue, and what the policies should be at law firms, and beyond.

In my last post, I wrote about a court case involving a law firm that has had rules in their contracts since 1999 regarding patent experts getting or asserting their own patents. I've also written about Scott Harris, a former Fish & Richardson attorney who became embroiled in a serious conflict with his firm after getting his own patents which were then sold and used to sue Google, a firm client, and several other IP lawyers filing their own patent lawsuits.

It's clear there are widely varying policies (or lack thereof) around this issue. It's possible that some law firms have instituted policies recently, perhaps in direct response to the Harris case.

"Patent Hawk" lawsuit was an inside job, says Microsoft

Patent consultant Gary Odom, who blogs and does business as "Patent Hawk," used to help Microsoft defend itself against patent lawsuits. But in August, Odom slapped his former client with a patent lawsuit of his own. On his blog, Odom took a quick break from denouncing patent reform to announce his new project, in an understated post titled "Tool Groups."

Odom gamely admitted that Microsoft had been his client for years. "They had every opportunity for friendly discussion," he wrote.

New documents filed in the case reveal much more about Odom's relationship with his client-turned-target. Not only did Gary Odom work for both Microsoft and one of its outside law firms over a period of several years—he actually signed contracts in which he agreed not to file his own patent or IP lawsuits, and agreed to disclose his own patent activity. 

But Odom broke those promises many times over, say Microsoft lawyers. He secretly acquired his own patents, ultimately asserting one in this lawsuit, claiming it covers features of Microsoft Office 2007.