The view that software patents are an impediment to progress—common
among technologists—is rare among patent attorneys. But Dan Ravicher is
not a typical patent attorney. He founded the Public Patent Foundation (PubPat),
a public interest group that, according to its website, "represents the public's interest against
undeserved patents and unsound policy." PubPat recently helped the ACLU launch a major challenge to human gene patents. In the past, PubPat has also challenged broadly asserted software patents, which Ravicher believes "hinder — rather than promote — innovation."
Meanwhile, it's not unusual that a patent-enforcement company recently set up in East Texas would file suit there this week against ten Internet-based and software companies. Nor is it unusual that Texas corporate records show the company is owned by an erstwhile big-firm lawyer, in this case David Garrod, formerly of Goodwin Procter.
What is surprising is that at the same time he is trying to wring licensing fees from such big online names as Google, Yahoo, and Amazon, Garrod is also spearheading a major PubPat initiative: filing lawsuits to rid the marketplace of false patent markings.
The company Garrod owns, Bedrock Computer Technologies, LLC, filed a lawsuit on Monday alleging that the defendants infringe U.S. Patent No. 5,893,120. The list of defendants includes seven big Internet companies—Google, Yahoo, MySpace, PayPal, Amazon, Match.com, and AOL—as well as the world's largest futures exchange, CME Group, and two software companies located in the Eastern District of Texas.
Asked whether Garrod's patent enforcement work was in conflict with PubPat's overall mission, Ravicher emphasized that Garrod's work for the foundation is vital to moving forward with the false marking litigation.
"Without Dave’s assistance we couldn’t do this campaign, which I’m convinced is a public good," says Ravicher. "We disagree about software patents. Dave’s going to do that other stuff, with or without the false marking campaign."
Garrod has been working with Ravicher on the false marking suits for several months. The two have been friends since they worked together at Patterson Belknap Webb & Tyler several years ago, according to Ravicher. Garrod, who did not respond to interview requests, moved to Goodwin Procter's New York office in 2004 and left in 2008.
Ravicher says he knew that Garrod, who works for PubPat without pay, was doing outside patent work. He did not, however, know that Garrod owned a patent enforcement company until IPLB informed him.
"I know he’s done some [patent] prosecution," says Ravicher. "I don’t get into his business with other matters too much."
Bedrock’s patent, which covers a software system that sorts through "expired" data in a record-keeping system, was issued to inventor Richard Nemes, a computer scientist, in 1999. Patent office records do not show when Garrod acquired the patent, and registering patent transfers is not required.
For the suit filed this week, Bedrock's first, Garrod hired two litigators with reputations for winning big damages in East Texas courts—Doug Cawley and Sam Baxter of McKool Smith. Also on Garrod's legal team: Parker, Bunt & Ainsworth, a Tyler firm. The Bedrock complaint is just over five pages long, and doesn't specifically identify any of the defendants’ products or practices that allegedly infringe the '120 patent.
The two software companies based within the Eastern District of Texas—Softlayer Technologies, Inc., in Plano, and CitiWare Open Source Technologies—may be included in the suit as a strategy to protect Bedrock’s choice of venue, given that defendants have lately been having better luck getting lawsuits transferred out of the plaintiff-friendly district.
(As an aside, CitiWare notes on its website that it moved its headquarters from Colorado to Longview after carefully considering "cost, IT infrastructure, business resources, central location, population density and rural incentives." Hmm... Patent litigation didn't make the list. Well, welcome to Longview, guys!)
One day after Bedrock filed its suit, Garrod filed a false marking lawsuit on behalf of PubPat in Manhattan federal court—the group's third. This suit, Public Patent Foundation v. McNeil-PPC, alleges that McNeil-PPC stamps expired and inaccurate patent numbers on its Tylenol product line.
False marking suits like PubPat’s have become popular in the past several months, and two patent attorneys have recently filed false marking suits against different manufacturers hoping for per-product penalties that could add up to big damages. But Ravicher says that PubPat's lawsuit isn't about money—he believes false marking hurts consumers and the free market.
"It robs legitimate patentees of the respect they deserve, and it can deter competitors," says Ravicher. False patent markings "can mislead consumers into thinking a product is safer, or more innovative, or just better than another product."
Ravicher acknowledged that it seems strange for a lawyer affiliated with PubPat—even as a volunteer—to have gone so far as to set up his own patent-holding company and then sued a group of major Internet players.
"Dave, if you were to talk to him, he’d say software patents are good, and they incentivize innovation," says Ravicher. "Some people can’t be friends with people who disagree with them. But I’m friends with lots of people I have strenuous disagreements with."
Asked whether he surprised by his friend's involvement in the business colloquially known as "patent trolling," Ravicher pauses, and then laughs. "Nothing surprises me these days."
The case is Bedrock Computer Technologies, LLC v. Softlayer Technologies, Inc. et al., 09-cv-00269, E.D. Texas (Tyler).
- Bedrock Computer Technologies v. Softlayer complaint [PDF]
- Public Patent Foundation v. McNeil-PPC complaint [PDF]
- Previous coverage of false marking suits:
Image: flickr / demimismo
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LLCT
Posted by: lucas law center | June 25, 2009 at 02:59 AM