It's official: Microsoft co-founder Paul Allen's Interval Licensing can be added to the long list of patent holders asserting their rights against Google's Android mobile operating system.
In late August I blogged about Interval's patent infringement suit against multiple defendants including Apple and Google. On 10 December 2010, the US District Court for the Western District of Washington dismissed the original suit for lack of "sufficient factual detail" concerning the alleged infringements (particularly, the accused products and services) and set a 28 December 2010 deadline for an amended suit.
Some commentators overrated the relevance of that decision. It happens all the time that plaintiffs try to get away with broad and vague allegations at this stage of the game (i.e., before discovery). If their allegations are too unspecific, they will be told to do their homework. It's unrelated to the merits of the case.
For example, in an ITC investigation against Apple, Nokia needed three attempts to withdraw its infringement claims concerning one of its patents (for details see page 19 of the PDF document in my previous post). Apple didn't even oppose Nokia's desire to do so, but the Administrative Law Judge in charge of the case felt that Nokia's first two motions lacked some information required by the ITC. So let's always separate formal shortcomings from actual weakness.
After the dismissal of Interval's original complaint, spokesperson for Paul Allen confirmed immediately that the company was going to refile an amended suit with more specific allegations. And so it did yesterday (just in time before the deadline). The Seattle Times reported on the refiling and linked to the amended complaint.
The amended complaint makes a number of infringement allegations against Google, and those relate to (among other Google offerings) Android. There are two paragraphs that accuse Android. The first one:
44. Defendant Google has infringed and continues to infringe at least claims 4, 8, 11, 15, 16, 17, and 18 of the ’652 patent under 35 U.S.C. § 271 by making, using, selling, distributing, and encouraging customers to use devices containing the Android Operating System and associated software such as Text Messaging, Google Talk, Google Voice, and Calendar. Devices containing the Android Operating System and associated software infringe by displaying information including, e.g., text messages, Google Voice messages, chat messages, and calendar events, to a user of a mobile device in an unobtrusive manner that occupies the peripheral attention of the user. For example, as demonstrated by Exhibit 24, when a user receives a new Google Voice message, the Android Operating System and Google Voice software display a notification in the status bar screen for a short period of time.
The relevant patent is US Patent No. 6,034,652 on an "attention manager for occupying the peripheral attention of a person in the vicinity of a display device".
Paragraph 54 makes an equivalent assertion concerning a related patent:
54. Defendant Google has infringed and continues to infringe at least claims 1, 3, 7, 9, 10, 12, 13, and 15 of the ’314 patent under 35 U.S.C. § 271 by making, using, selling, distributing, and encouraging customers to use devices containing the Android Operating System and associated software such as Text Messaging, Google Talk, Google Voice, and Calendar, and by making and using the hardware and software that operate the Android and Android Market infrastructure. Google’s infringement of the ’314 patent that relates to Android results from substantially the same activities as its infringement of the ’652 patent, described above in [paragraph] 44.
The '314 patent is US Patent No. 6,788,314 and has the same title as the aforementioned '652 patent. The '314 patent is a continuation of a continuation of the patent application that resuled in the '652 patent.
If any of those infringement assertions against Android is true, this can spell trouble for makers of Android-based devices, and for Android application developers. The two paragraphs I quoted state clearly that the alleged infringement is an issue of "devices containing the Android Operating System", and the "Android Market infrastructure" is mentioned in the same context.
Patent holders can choose to sue Google, device makers, application developers, users, or any combination of the foregoing options. Most patent infringement suits related to Android target only device makers such as Motorola and HTC, but Interval Licensing is one of four right holders to sue Google directly. The others are Oracle, and Gemalto. Interval and Oracle could opt at any time to file suits against Android device makers, such as for the purpose to increase the pressure on Google. Gemalto and Vertical went after Google as well as some leading manufacturers.
Should Google be served an injunction as a result of Interval's suit, owners of Android phones (a group that includes me, by the way) would experience a very significant degradation of the user experience. Android's usability is generally under threat now because Apple already asserts various user interface (particularly multi-touch) patents against HTC and Motorola, and in its latest claims against Motorola, Microsoft also asserted a couple of touchscreen patents.
As I just mentioned Apple, it's also among the defendants named by Interval Licensing, but the infringement assertions don't target the iOS operating system. They relate to content recommendations provided to users by iTunes, the App Store, and Apple TV.
Was this the last smartphone patent suit for this year? It may have been, but not necessarily. A year ago, Nokia filed two complaints against Apple on the 29th of December.
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