Congress to give Google, trolls a patent theft ‘hall pass’
In his authorized biography of Steve Jobs, the dying Apple co-founder told Walter Isaacson he was so incensed by Google’s theft of the iPhone operating system, technology and other innovations it used to create the Android phone that he would launch a battle to end all battles.
Jobs said to Isaacson: “I’m going to destroy Android, because it’s a stolen product. I’m willing to go thermonuclear war on this.”
The Silicon Valley legend said he would risk the very existence of Apple to punish Google. “I will spend my last dying breath if I need to, and I will spend every penny of Apple’s $40 billion in the bank, to right this wrong.”
Alas, Jobs is no longer with us, but Google got the message and is working over Congress for a patent “hall pass” tucked inside a bill rapidly working its way through Congress. The bill is a look-back bill amending the 2011 America Invents Act.
When the AIA went through Congress the first time, it significantly changed patent law by changing the standard from a first-to-invent system to a first-to-file system, which is the standard in the rest of the world.
To safeguard inventors from opportunists, who file for patents they do not deserve, the AIA provides a nine-month Post Grant Review process after the patent is granted.
Though the nine-month review period was reasonable for everyone else, Wall Street was worried about the litigation minefield created by the fact that certain financial processes have been patentable since 1997 as Covered Business Methods, so Congress created a transitional process for financial services related CBM’s that until 2020 allows parties to challenge patents. [Breath]
The Wall Street guys were given a private appeal process for when they were accused of infringing on procedures another guy patented.
In the House and Senate, there appears to be strong bipartisan consensus to address the problem of patent trolls. Trolls buy up patents with the express purpose of litigation accusing others of infringement and demanding money. Trolling lawsuits have become a drain on the economy costing nearly $30 billion to the economy in 2011 alone.
House Judiciary Committee Chairman Rep. Robert W. “Bob” Goodlatte (R-Va.) has introduced legislation to take on trolling. The bill requires heightened pleading requirement and shifts the costs of these lawsuits from the defendants to the litigants. As far; so good.
Enter Google. From Google Books to Google Chrome and many in between, the company has a long and sordid history of running roughshod over patents and private property rights.
Working with staffers, who may end up working at Google at the end of their careers in “public service,” a provision has been included in Goodlatte’s bill that would alter AIA’s Section 18 to expand the definition of CBM to include data processing in any enterprise, service or product. Translation: software, hardware and devices produced by Google.
This is bad enough, but some are trying to expand this section to any and all “business processing software.”
Not only would the Google clause expand the scope of CBM, it would make it a permanent program. Instead of closing in 2020, the challenge window would remain open for the life of the patent. Any patent could be challenged at any time.
In the everyday practice, the Google provision would mean that if a patent holder files a claim against Google, the search engine giant would not have to resolve the dispute with the patent holder. Instead, Google could attack the validity of the patent itself.
That is one thing if the dispute is Apple v. Google or Cisco v. Google. It is another thing for an app developer in his garage trying to bring Google to heel.
As the revision of the America Invents Act makes its way through Congress, there are many strong measures in the bill to improve how the government protects intellectual property and encourages creativity. But, the Google-lobbied changes to Section 18 are not what Jobs would have recommended.
If Steve Jobs was not battling cancer, there is no doubt that he was ramping up to sue Google for stealing from the iPhone to create its Android phone platform.
Instead of heeding the concerns of one of America’s greatest visionary business leaders and tightening protections for patent holders, with its rewrite of Section 18, Congress is about to give his nemesis immunity from justice.
This Google-friendly change to Section 18 must be squashed, or it will be it is the country’s true innovators who will be getting jobbed.