After yesterday's Oracle v. Google patent verdict (which doesn't have any bearing on the truly important issue in that case, the 37 asserted Java APIs), the San Jose Mercuy News quoted Google spokesman Jim Prosser with (among other things) the following statement:
"So you have all these patent lawsuits between tech companies and it's very damaging to the industry overall. We think the patent system needs to work better for software."
Interestingly, Apple and Samsung, the two companies that have more lawsuits pending against each other (and in more countries, ten in total by now) than anyone else and couldn't agree on a settlement earlier this week, happen to be the ones who are currently reaping 99% of total industry profits in mobile devices.
If there's any category of patent assertions going on in this industry that really could do serious damage in the near term, that would be abusive litigation over standard-essential patents. That's why Samsung and now-wholly-owned Google subsidiary Motorola are being investigated by the European Commission's renowned antitrust enforcement division.
If regulatory concern is any indication, this would be the right starting point for Google's efforts to address problems related to patent litigation. And it would be high time to act. Otherwise, products like the iPhone, iPad, Windows, the Xbox, and (in cases with which Samsung and Motorola aren't involved) all of Nokia's and (Google partner) HTC's phones could soon become unavailable in major markets, for all the wrong reasons.
With the greatest respect for the alma mater of Google's founders, Stanford (where you can also find some super-bright minds who are concerned about the abuse of standard-essential patents), the Massachusetts Institute of Technology (MIT) has just set an example for the world, including Google and its newly-acquired, FRAND-abusing subsidiary, to follow.
Last Friday, the MIT, which claims to own over 3,500 issued U.S. patents, filed a patent lawsuit against a company named Funai for allegedly selling infringing products "under brand names such as Magnavox, Sylvania, Emerson, Funai, and Symphonic" as well as Philips. According to the complaint, a Funai subsidiary in the U.S. is "the exclusive brand-name licensee of Philips consumer televisions (including Blu-ray players, DVD players/recorders, and VCR players) and home theaters and Philips Hospitality in North America".
I'll show you the complaint and, further below, I'll explain what Google should learn from this document:
12-05-18 MIT v Funai ComplaintMIT is asserting four patents against Funai products that implement the ATSC, MPEG 2 and/or MPEG 4 standards industry standards. MPEG 4 is also known as AVC/H.264. And H.264 is the standard over which Google (through its wholly-owned subsidiary Motorola) is trying to get Windows 7 and the Xbox banned in Germany -- yesterday I published certified translations of two related German court rulings.
While Google (through Motorola) is aggressively pushing for injunctions based on such patents, the MIT's exemplary complaint against Funai does not. The MIT complaint has nine prayers for relief -- they are just about getting paid, and none of the is about shutting down products over patents that must be licensed on fair, reasonable and non-discriminatory (FRAND) terms.
Demanding to get paid for standard-essential patents is perfectly acceptable: as long as such patents exist, no one can realistically expect a free ride. But the MIT shows that you can defend your legitimate economic interests without pursuing abusive injunctions, while Google (Motorola) tells the courts (or the ITC) that it needs to win sales bans and import bans against its rivals. As a matter of fact, an ITC judge concluded that Google (Motorola) "was not interested in good faith negotiations and in extending a [F]RAND license" to Microsoft.
If the MIT can get reasonable compensation for its standard-essential patents without requesting damaging injunctions, Google should also learn the trick soon. Until Google withdraws all those highly-abusive requests for injunctions based on FRAND-pledged standard-essential patents, it doesn't have any legitimate basis for telling other companies what to do or not to do in patent litigation.
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