Google was the first litigant in the ongoing wave of smartphone-related patent disputes to complain publicly about assertions of "bogus patents" and about "patent trolls" ("We're fighting to stop patent trolls' use of low-quality patents to extort", "Patent trolls abuse system, stymie innovation").
In my opinion, someone who continues to enforce a patent that is already clinically dead is the epitome of a patent troll, regardless of whether it's a practicing or non-practicing entity. Even an organization as large and innovative as Google can behave like a troll. It depends on the quality of a patent and on litigation tactics.
This time around it's not about FRAND-pledged standard-essential patents. I also have a problem with Google's still-ongoing enforcement of a non-standard-essential Motorola Mobility patent, EP0847654 on a "multiple pager synchronization system and method", against Apple in Germany. 17 months ago Motorola Mobility (while in the process of being acquired by Google) won a German injunction over this patent against Apple. Later that month (February 2012) it started to enforce the injunction. The following month an appeals court allowed enforcement to continue. So far, this was par for the course under Germany's bifurcation regime, where infringement cases are typically adjudged ahead of nullity (invalidation) actions. But a number of important developments have occurred in the meantime that make Google's continued enforcement an unjustifiable, trollish act:
In December 2012, this patent was found invalid for four independent reasons by a UK court (no other patent in the ongoing smartphone patent disputes has been ruled invalid for that many independent reasons).
In April 2013, the Karlsruhe Higher Regional Court suggested to Google's counsel to stay the appellate proceedings over strong doubts concerning the validity of this patent, which Google initially declined but later accepted to stipulate to. (Technically these are two cases, one against Apple's U.S. parent company and one against its Ireland-based European sales operation).
Also in April 2013, the Mannheim Regional Court (which had granted Google the injunction in question) stayed Motorola's case against Microsoft over doubts concerning the validity of the patent. (There's an important difference between the Apple and Microsoft cases: Microsoft was found licensed to the patent from the moment Google acquired Motorola Mobility, limiting the infringement issues in the case to pre-acquisition infringement and lowering the hurdle for a stay.)
The Bundespatentgericht (Federal Patent Court of Germany) will hold a nullity (invalidation) hearing on November 13, 2013. The patent has a snowball's chance in hell. The Federal Patent Court would have to reach a different conclusion concerning the validity of this patent on each and every one of the four invalidity theories that the London-based High Court considered to prove the patent invalid. Statistically that's extremely unlikely. The standards applied by these courts aren't 100% identical, but they don't differ that much. Common sense also says that push notifications existed before this patent. What makes this all the more embarrassing for Google as a vocal supporter of open Internet standards is that version 4 of the IMAP protocol (which Google itself implements) is one of the prior art references in question.
It's just wrong that Google continues to enforce last year's injunction under this set of circumstances. Apple hasn't surrendered because of this enforcement in 17 months, so it won't throw in the towel in the four months between now and the nullity hearing. Google will ultimately owe Apple damages for enforcement of an injunction over a patent that should never have issued in the first place. (In this regard, nullity actions in Germany are different from the impact of rejection in a USPTO reexamination proceeding.) The only effect that this has is that German Apple users don't get "push email delivery for iCloud, Yahoo!, AOL, QQ and NetEase". They get their email -- but they aren't notified automatically upon receipt. Instead, they have to configure their email client to periodically check (pull) email. This is a totally pointless hassle. I receive emails and Twitter messages from German Apple users who ask me when they are going to get push email back. And after the appeals court suggested a stay of the proceedings, I really thought Google would realize that this is a dead patent walking and do the right thing, i.e., stop enforcement (it could always resume enforcement after the Federal Patent Court has spoken, should this patent survive against all odds).
It's not Google's fault that patent litigation in Germany works the way it works and that patent offices -- in this case, the European Patent Office -- grant way too many patents that they shouldn't issue. And Google is not the only party to have enforced a patent in Germany that was later found invalid. Less than two weeks after Motorola won its push notification injunction, Apple won one over the slide-to-unlock patent against Motorola from a different German court (Munich I Regional Court). It enforced it. In April 2013, the Federal Patent Court declared it invalid and the Munich Higher Regional Court stayed the appellate proceedings. I don't know whether Apple is still enforcing it or not. If it does, then I'm sure it would cease enforcement if Google also stopped enforcing the push injunction. But there are important differences between these cases. The most important one is that German users of Motorola phones aren't affected. Motorola worked around it and has ever since been shipping devices with a slide-to-unlock mechanism that falls outside the scope of the injunction. Apple had not prevailed on all implementations, so the workaround already existed and was approved by the court (Apple did not even appeal that part of the decision).
It's one thing to have a dispute between two large companies sorting out IP issues. It's another to cause inconvenience to end users when this serves no strategic purpose and when there's no reasonable statistical basis for believing that the patent is valid.
Most Apple customers use Google's search engine and other online services. It would be a smart business choice for Google to discontinue its trollish enforcement of that bogus patent injunction in Germany out of respect for the end users needlessly affected by it.
If you'd like to be updated on the smartphone patent disputes and other intellectual property matters I cover, please subscribe to my RSS feed (in the right-hand column) and/or follow me on Twitter @FOSSpatents and Google+.
Share with other professionals via LinkedIn:
