Google Under Attack -- Again

Total Page：16

File Type：pdf, Size：1020Kb

Google Under Attack -- Again Patent wars loom for Google and its Android operating system. Can it defend itself this time? Google is under attack once again and on multiple These are just two of the recent major attacks fronts. The so-called Rockstar Consortium and against Google in the US. Hundreds of other claims Netstar Technologies have filed a major patent are pending abroad, namely in Europe (see for an infringement lawsuit against Google and some of its example here) where media companies are losing mobile partners at the end of last week. More details the plot of the Internet age. Not easy to be can be read about the case here. successful. The group is, essentially, a patent troll with some of Miklos's blog the major tech companies behind it, including Microsoft, Apple, BlackBerry, Sony and Ericsson. It Follow INSEAD Knowledge on Twitter and Facebook has over 6,000 patents related to mobile telecommunications technology, which were acquired with failed Nortel in 2009 for $4.5 billion. Find article at Google lost that bid against the consortium but later https://knowledge.insead.edu/blog/insead-blog/google- bought Motorola Mobility for $12.5 billion amassing under-attack-again-2965 some 17,000 patents. Will this war chest be strong enough to defend itself Download the Knowledge app for free in the lawsuit that attacks its hugely successful Android operating system in its very fundamental functions, such as "the ability to send advertising to people related to a search query"? Google has also been attacked on the content-side, held responsible for "not doing enough against piracy" by Senator Chris Dodd who has emerged as the main lobbyist of the Motion Picture Association of America. While nasty (as attacks are meant to be), this initiative is also pretty dumb as it completely misses its target, namely the companies who actually pirate the content and allow free streaming for everyone. Visit INSEAD Knowledge http://knowledge.insead.edu 01 Copyright © INSEAD 2021. All rights reserved. This article first appeared on INSEAD Knowledge (http://knowledge.insead.edu). Powered by TCPDF (www.tcpdf.org).

Copy Link

Recommended publications

THE DEFENSIVE PATENT PLAYBOOK James M
THE DEFENSIVE PATENT PLAYBOOK James M. Rice† Billionaire entrepreneur Naveen Jain wrote that “[s]uccess doesn’t necessarily come from breakthrough innovation but from flawless execution. A great strategy alone won’t win a game or a battle; the win comes from basic blocking and tackling.”1 Companies with innovative ideas must execute patent strategies effectively to navigate the current patent landscape. But in order to develop a defensive strategy, practitioners must appreciate the development of the defensive patent playbook. Article 1, Section 8, Clause 8 of the U.S. Constitution grants Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”2 Congress attempts to promote technological progress by granting patent rights to inventors. Under the utilitarian theory of patent law, patent rights create economic incentives for inventors by providing exclusivity in exchange for public disclosure of technology.3 The exclusive right to make, use, import, and sell a technology incentivizes innovation by enabling inventors to recoup the costs of development and secure profits in the market.4 Despite the conventional theory, in the 1980s and early 1990s, numerous technology companies viewed patents as unnecessary and chose not to file for patents.5 In 1990, Microsoft had seven utility patents.6 Cisco © 2015 James M. Rice. † J.D. Candidate, 2016, University of California, Berkeley, School of Law. 1. Naveen Jain, 10 Secrets of Becoming a Successful Entrepreneur, INC. (Aug. 13, 2012), http://www.inc.com/naveen-jain/10-secrets-of-becoming-a-successful- entrepreneur.html.
[Show full text]
Standard Essential Patents, Trolls, and the Smartphone Wars: Triangulating the End Game, 119 Penn St
UIC School of Law UIC Law Open Access Repository UIC Law Open Access Faculty Scholarship 2014 Standard Essential Patents, Trolls, and the Smartphone Wars: Triangulating the End Game, 119 Penn St. L. Rev. 1 (2014) Daryl Lim John Marshall Law School, [email protected] Follow this and additional works at: https://repository.law.uic.edu/facpubs Part of the Antitrust and Trade Regulation Commons, Intellectual Property Law Commons, and the Litigation Commons Recommended Citation Daryl Lim, Standard Essential Patents, Trolls, and the Smartphone Wars: Triangulating the End Game, 119 Penn St. L. Rev. 1 (2014) https://repository.law.uic.edu/facpubs/511 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Open Access Faculty Scholarship by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. I Articles , Standard Essential Patents, Trolls, and the Smartphone Wars: Triangulating the End Game Daryl Lim* ABSTRACT Few legal issues in recent years have captured the public's attention more powerfully than litigation over standard essential patents ("SEPs"). This Article explains how SEP litigation overlaps with two other major centers of patent litigation-litigation involving smartphones and patent assertion entities ("PAEs"). It observes that attempting to pre-empt patent hold-ups by imposing blanket ex ante disclosure obligations and royalty caps on standard setting organizations ("SSOs") is misdirected *Assistant Professor, The John Marshall Law School. I am grateful to Logan Breed, Mike Carrier, Jorge Contreras, Tom Cotter, Sean Gates, Llew Gibbons, Allen Kamp, Josh Samoff, Greg Vetter as well as the participants of the AIPLA Computer and Electronic Summit, the McAndrews, Held & Malloy LLC Comprehensive IP Litigation Update, the IP Scholars' Roundtable, the IP on the Edge Conference, and the Faculty Work in Progress Workshop for their helpful comments and suggestions.
[Show full text]
Artikelen PRIVATEERS and TROLLS JOIN the GLOBAL PATENT WARS; CAN COMPETITION AUTHORITIES DISARM THEM?
Mr. M. Dolmans1 Artikelen Privateers and trolls join the global patent wars; can competition authorities disarm them? Computerrecht 2014/37 a component that is subject to network effects, and you can threaten producers with catastrophic loss. On Halloween of 2013, patent assertion company – Patents proliferate in the ICT sector. This is partially Rockstar, owner of one of the largest patent portfo- due to patent mining and strategic patenting – firms lios in the world, 2 filed patent law suits against seven creating dense thickets of overlapping patent claims mobile phone makers and Google in the Texas ‘rocket covering and surrounding a product to block rivals. As docket’. 3 This heralded an escalation in the mobile patent offices are overwhelmed by applications in new, patent world war raging since 2010. fast-moving and complex technology areas, some think they grant patents without adequate review, leading to This ‘Halloween Attack’ is symptomatic of an in- lower patent quality. 4 Yet, in a portfolio, volume makes creasing problem: opportunistic exploitation of up for weakness. Patents are presumed valid, and chal- patents by Patent Assertion Entities (‘PAEs’, or less lenging patents is costly and time-consuming. More politely, ‘trolls’), and the strategic use of such PAEs important, if one patent is annulled or found not in- by firms to hamper their rivals. The war stories from fringed, patentees will have others. Litigation becomes the mobile phone sector are interesting as examples like a fight against the Hydra: chop off one head and of a competitive game, but even more as a harbin- two more grow.
[Show full text]
Some Observations on the Patent Troll Litigation Problem
Intellectual Property& Technology Law Journal Edited by the Technology and Proprietary Rights Group of Weil, Gotshal & Manges LLP VOLUME 26 • NUMBER 8 • AUGUST 2014 Some Observations on the Patent Troll Litigation Problem By Christopher Hu atent infringement cases brought by so-called problem can be addressed. In brief, the problems P patent trolls have received considerable atten- stem from the way nonpracticing entities (NPEs) tion in recent years, enough so that both Congress use or misuse the judicial system, not the US Patent and the White House have chimed in on the sub- Office. Accordingly, the solution primarily involves ject.1 The number of cases filed by patent trolls, the applying existing judicial procedures more vigorously cost of defending or settling these cases, the size with minimal changes to existing substantive law. of some judgments, the perceived frivolousness of some cases, and the use or abuse of litigation as a The Patent Troll “Problem” tool to “extort” settlements have all drawn atten- tion to this issue. Adding to the controversy is the Some Statistics on Patent Troll Litigation sentiment among some that it is inherently unfair NPEs, also known as patent trolls or patent asser- or economically wrong for an entity that does not tion entities (PAEs), are a fact of business life in the practice a patent to profit by asserting it. United States. Definitions of a patent troll vary but Although there is some statistical data concerning the common element of every definition is that a the assertion of patents by trolls, and a considerable patent troll is an entity that does not itself practice a amount of anecdotal evidence, there appear to be patent but instead asserts the patent against entities no rigorous studies on the economic effect of trolls.
[Show full text]
Standard-Essential Patents and Pooling October - December 2014 Developments by Kenneth M
Standard-Essential Patents and Pooling October - December 2014 Developments By Kenneth M. Frankel, John C. Paul, and Flora M. Amwayi U.S. Litigation 1. Ericsson v. D-Link Federal Circuit holds that jury instructions on damages should only concern Georgia Pacific factors relevant to the case at issue, and should properly inform the jury on the actual RAND commitments at issue and the proper apportionment of the value of the invention apart from the value of the standard: December 4, 2014: The Federal Circuit affirmed a district court’s denial of defendants’ motion for a new trial based on an alleged violation of the “entire market value rule.” But the court vacated the jury’s determination of $10 million in damages, and remanded the case on the grounds that the district court committed prejudicial error in instructing the jury to consider multiple irrelevant or misleading Georgia Pacific factors in determining Ericsson’s RAND obligations. Ericsson sued D-Link, Toshiba, Netgear, Belkin, and other defendants for infringement of various standard- essential patents. Following a jury verdict of infringement and a bench trial on RAND-related issues, the defendants appealed. The court held that evidence of licenses based on the entire value of licensed, multicomponent products including unpatented components is admissible, and that the lower court violated no substantive legal rule or evidentiary standard by admitting expert testimony on the same. However, the court concluded that the district court committed prejudicial legal error when it failed to adequately instruct the jury on the actual RAND commitments at issue, the proper apportionment of the value of the invention apart from the value of the standard, and the Georgia- Pacific factors relevant to the case at issue.
[Show full text]
How the Transformation of Patents from Rewards to Weapons Reveals the Limits of Antitrust
Plowshares into Swords: How the Transformation of Patents from Rewards to Weapons Reveals the Limits of Antitrust Introduction Patents exist in fascinating opposition to antitrust law by virtue of conferring a legal monopoly upon their owners. Neither the Sherman Antitrust Act nor the Clayton Antitrust Act cover patents. Furthermore, there is no mention of patents in updates to either of these statutes, either. Antitrust has traditionally sought to prevent companies from acquiring too big a share of the market and aims to prevent corporations and market entities from engaging in behavior that otherwise harms consumers.1 Antitrust authorities and enforcers see themselves as the heroic defenders of the consumer.2 Patents and antitrust law have rarely collided outside of heavily- scrutinized pay-for-delay deals struck between big pharmaceutical corporations and their nemeses—generic drug manufacturers.3 These two legal spheres can collide, however, when entities in a given market space compete with each other through patent assertion litigation. The litigation between Samsung and Apple has burned itself into the public consciousness as an example of utilizing patents as a method of attacking one’s market rivals. Of 1 Maurice Stucke, Reconsidering Antitrust’s Goals, 53 B.C. L. REV. 551 (2012). The author notes that four traditional goal of antitrust are “ensuring effective competitive process, promoting consumer welfare, maximizing efficiency, and ensuring economic freedom.” 2 Bill Baer, Remedies Matter: The Importance of Achieving Effective Antitrust Outcomes, 30 No. 1 CORP. COUNS QUARTERLY, ART 4 (2014). The article is interesting for its earnestness and also significant because it gives the reader a glimpse into the minds of the government agents in charge of “policing” various aspects of corporate activities.
[Show full text]
RPX Acquires Patents Owned by Apple’
RPX acquires patents owned by Apple’s Rockstar Consortium for US$ 900M January 9, 2015 American patent risk management company, RPX Corp., entered into an agreement to acquire around 4,000 patents owned by Rockstar, a consortium led by Apple Inc. and other firms for US$ 900M. Rockstar was created as a patent holding entity in 2011 by technology bigwigs like Apple, Microsoft, Blackberry, Sony and Ericsson, with the intent of purchasing the 6,000 patents from the Nortel Network Corp., for US$ 4.5B, following its bankruptcy. About 2,000 of the most valuable patents have already been distributed to Rockstar stakeholders. The consortium has since filed a number of patent infringement lawsuits against companies including Google, which was attacked for its Android mobile operating system. In addition to Google, Rockstar has also filed patent suits against Cisco, LG, HTC, Samsung, Huawei, Asus, Pantech, and ZTE. In November, 2014, Rockstar settled its lawsuits against Google and Cisco. In early November, Cisco had disclosed to its investors that in order to settle the Rockstar lawsuit, it had recorded a pretax charge of US$ 188M. This deal with RPX will draw to a close all lawsuits filed by Rockstar including those against Samsung, HTC, LG and Huawei Technologies. RPX now plans to license these patents to a group of over 30 tech companies, including Google and Cisco. John Amster, the chief executive officer of RPX said in a statement, “I think people have started to realize that licensing, not litigation, is the best way to make use of patents, and this deal is a significant acknowledgment of that reality.” He stated, “We are pleased to act as clearinghouse and underwrite an agreement between the owners of Rockstar and our syndicate of licenses”.
[Show full text]
Hybrid Product/Licensing Models
3LP Document available for public consumption 5 reasons to be skeptical of a $1B Yahoo patent sale Prepared by 3LP Advisors, LLC June 9, 2016 As of the date of releasing this piece, 3LP Advisors, LLC is not directly involved in the Yahoo patent sale process as an advisor or investor. Consequently, all opinions expressed herein reflect views we independently developed, solely based on information that is publicly available. Our views could potentially change if we were to be made aware of relevant non-public information. Our views result from our independent evaluation of the assets and from our experience in the patent marketplace. We are not offering investment advice. Potential investors should conduct their own evaluation of the assets. -Attorney Confidential- Key messages . Yahoo is marketing a portfolio of seminal patents related to web search and advertising. Press attention has focused on the possibility of a $1B+ sale . While a few $1B+ patent sales have occurred in the past, there are reasons to be skeptical that such a price will be achieved in this instance . Investors and company Boards need to recognize the current environment for patent sales and should not be led astray by advisors emphasizing the high potential of this Yahoo transaction . We can describe scenarios that would lead to a $1B sale, but we handicap the likelihood of such a deal as very low 3LP 2 -Attorney Confidential- The media is reporting that Yahoo expects serious money from its patent sale We feel that that the valuation expectations being set are unrealistically
[Show full text]
Navigating the Antitrust Minefield
IAM_51 Paginated - 1 30/11/2011 16:47 Page 59 The competition angle Navigating the antitrust minefield and therefore prevent Google from The Nortel patent auction and obtaining any part of it outright. That is a Google’s proposed takeover of collective acquisition of competing patents, Motorola Mobility have attracted the and the winning bid might or might not be attentions of US competition deemed anti-competitive, depending on how the portfolio ends up being used.” regulators. With several other high- Licensing deals are also at risk from stakes patent transactions on the claims of being anti-competitive. “At one cards, chief IP officers need to time, companies could simply follow the know the dangers of violating government’s list of ‘Nine No-Nos’ when antitrust law and the steps they can licensing IP,” says M Howard Morse, an antitrust partner at Cooley in Washington take to avoid costly consequences DC. The “Nine No-Nos” were a set of rules which per se prohibited practices such as By Jack Ellis mandatory package licensing, mandatory grant-backs, tying unpatented supplies into patent licences and compulsory payment of The huge sums involved in the Nortel unreasonable royalties. “Today, life is more auction and Google’s subsequent purchase complicated, as practices once condemned – of Motorola Mobility have changed the way from tying to grant-backs – are now often that patents are seen. Suddenly, portfolios recognised to be pro-competitive,” continues have gained the attention of chief executives Morse. “But this is not to say that we are and investors like never before. The now in the world of ‘No No-Nos’.
[Show full text]
Patent Aggregation: Treatment of Patents in Standards Development Processes and Their Downstream Implications
ARTICLES Antitrust , Vol. 26, No. 3, Summer 2012. © 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Such questions will continue to arise as the intersection of patent and antitrust law evolves, especially with respect to the Patent Aggregation: treatment of patents in standards development processes and their downstream implications. In this article, we analyze Guidance from the the DOJ’s announcement of the closure of the three investi - gations against the backdrop of previous agency and private actions concerning alleged misconduct in the standard-setting DOJ’s Recent Approval context. We consider whether the DOJ’s approach provides adequate safeguards against future misconduct. We also con - sider whether large-scale patent acquisitions of this kind have Of Three Major Patent other implications for competition law, especially in light of the growing demand for technology patent portfolios. Portfolio Acquisitions The Deals—Details and Public Reaction The DOJ’s investigations focused on three proposed acqui - BY THOMAS P. BROWN AND SAMUEL C. ZUN sitions that would result in the transfer of major patent port - folios. As outlined below, each portfolio contained patents essential to industry standards or, in one case, open-source technologies. The first scrutinized acquisition arose from a transaction N FEBRUARY 13, 2012, THE ANTITRUST that the DOJ previously investigated and modified—the Division of the U.S.
[Show full text]
RPX Corporation Purchases Rockstar Patents
December 23, 2014 RPX Corporation Purchases Rockstar Patents SAN FRANCISCO, Dec. 23, 2014 /PRNewswire/ -- RPX Corporation (NASDAQ: RPXC) today announced that its subsidiary, RPX Clearinghouse LLC, executed an agreement to purchase the patent assets controlled by Rockstar Consortium LLC. Rockstar is the entity formed in 2011 by Apple, Blackberry, Ericsson, Microsoft, and Sony to purchase approximately 6,000 patent assets from the Nortel bankruptcy estate. Approximately 2,000 of these patent assets were previously distributed to various Rockstar owners and are not part of this transaction. RPX Clearinghouse will receive license payments from a syndicate of over 30 companies, including Cisco and Google. Upon closing, which is subject to regulatory approval and other customary conditions, syndicate participants will receive non-exclusive licenses to the Rockstar patents, and RPX Clearinghouse will make the patents available for license to all other interested companies under fair, reasonable, and non-discriminatory (FRAND) terms. "We are pleased to act as a clearinghouse and underwrite an agreement between the owners of Rockstar and our syndicate of licensees," said John A. Amster, Chief Executive and Co-founder of RPX. "Leading technology companies from multiple industries came together to shape this transaction. We commend everyone involved for their leadership and commitment to clearing the risk of the Rockstar portfolio by negotiating a reasonable purchase price in one efficient transaction." The RPX Clearinghouse syndicate includes a broad range of software and media providers, semi-conductor manufacturers, wireless carriers and wireline network operators, Multiple System Operators (MSOs), and Original Equipment Manufacturers (OEMs). "With RPX acting as a clearinghouse and deal manager, a global consortium of unprecedented scale came together willingly and reached a fair value for licensing patent rights in a negotiated business transaction instead of a courtroom.
[Show full text]
Formerly Manufacturing Entities: Piercing the Patent Troll Rhetoric
CONNECTICUT LAW REVIEW VOLUME47 DECEMBER 2014 NUMBER2 Article Formerly Manufacturing Entities: Piercing the "Patent Troll" Rhetoric KRISTEN OSENGA Everyone hates patent trolls-those companies that "hijack somebody else's idea" and use the patents to "extort some money" from companies that actually make things. But, despite the rhetoric, not all patent trolls are created equal. This Article is the first to focus on one type ofpatent troll the formerly manufacturing entity. These patent trolls used to make or do something in commerce, but now derive all or a significant portion of their income through licensing their intellectual property. Using case study analysis, this Article demonstrates that formerly manufacturing entities do not impose the harms associated with patent trolls more broadly and, in fact, provide unique benefits for commercialization of new technologies. Specifically, formerly manufacturing entities do not "sneak up " on manufacturing companies, waiting for them to invest extensively in a technology before seeking a license. Rather, the technology and the patents are already out in the open, having been practiced by the patent troll. Further, because formerly manufacturing entities have already worked to commercialize the technology, they are in a much better position to assess its value, as well as the costs and risks associated with bringing it to market. We should recognize the benefits formerly manufacturing entities add to commercialization and, in the larger scheme, ensure that potential patent reform measures and judicial solutions to the patent troll problem are carefully drawn so as not to do more harm than good. 435 ARTICLE CONTENTS I. INTRODUCTION ................................................................................... 437 II. PATENTS, LICENSING, AND COMMERCIALIZATION ...............
[Show full text]