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Mammoth patent troll holder snags smartphone threat

'Obscenely broad' implications

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One of the largest US intellectual-property firms has acquired an "obscenely broad" patent that may cause migraines among the legal teams at Apple, Google, Palm, Motorola, NTC, and other smartphone makers.

The patent in question is for motion-based smartphone control - the accelerometer-based technology found in nearly every popular smartphone, including the iPhone, Nexus One, Palm Prē, and others.

Entitled "Method and apparatus for controlling a computer system," the patent was filed in July of 2006 and granted this March 16. While those dates may sound too late to be of any worry to smartphone makers, the patent is essentially identical to one filed in March 2001 and granted in December 2004 entitled - you guessed it - "Method and apparatus for controlling a computing system."

That first patent predates similar patents such as Apple's "Varying user interface element based on movement" and "Movement-based interfaces for personal media device," both filed in October 2007 and published in April 2009.

The more recent of the two identical motion-control patents was uncovered this Wednesday by Digital Daily's John Paczkowski, who also discovered the two subsequent Apple patents.

John Orchard is listed as the inventor on the earlier of the two patents, and the co-inventor along with Chris Uhlik of the one issed on March 16. Both The Reg and Paczkowski independently discovered the interesting tidbit that Orchard has been an hardware engineering manager at Apple since 2004 and Uhilk has been an engineering director at Google since 2002. Both previously worked at the company listed as the Assignee for the first patent, ArrayComm of San José, California, when the first patent was filed. No Assignee company is listed for the more-recent patent.

One patent attorney with whom Paczkowski spoke characterized the motion-control patent as "obscenely broad."

Paczkowski has now discovered that the current owner of the patent is Intellectual Ventures (IV), a self-styled "invention company" which The Reg wrote about just this Wednesday in conjunction with its TerraPower division's work on small-scale nuclear reactors.

Those reactors may be small-scale, but IV certainly isn't. According to a 1,989-page report published by the "Strategic IP Counseling" group Avancept LLC in January of this year, IV has a patent portfolio that could include as many as 25,000 to 50,000 patents squirreled away in around 1,100 shell companies.

That size of a patent portfolio would place IV among the top 10 patent holders among US companies - and, according to Avancept, "quite possibly at the upper end of the top 10."

IV's shell companies, acording to the report, along with "other IV entities" have conducted 810 "apparently relevant" IP transactions from 2001 through 2009 involving 7,018 US patents and 2,871 US patent applications, all of which "appear to be directly controlled" by Intellectual Ventures.

IV was founded in 2000 by former Microsoft CTO Nathan Myhrvold and fellow ex-Microsoftie Edward Jung, who now share the Founder title with two other tech veterans, Peter Detkin and Gregory Gorder.

Myhrvold and Detkin were featured in a 2006 article (PDF) in Intellectual Asset Management Magazine in which they went out of their way to distance themselves from the unflattering sobriquet of "patent troll." The article notes that Myhrvold told a US Senate IP panel: "If I’m a troll, I must be the dumbest and least effective one of all." The article continues:

Detkin, the coiner of the phrase, agrees. "Patent troll has been hijacked and used in many circumstances where it's not appropriate. People see trolls in every shape they want to," he says. But he describes himself as "baffled" when the term is applied to him, Myhrvold or Intellectual Ventures. "If anything, I'm anti-troll," he says. "If I’m buying a patent, it's definitely for sale."

The assertions of smartphone patents - whether such assertions can be accurately characterized as trolling or not - is currently in high gear. Just this month, for example, two broad-brush patent suits have been filed against smartphone makers. The first was filed against Apple, RIM, and seven others by an obscure Texas firm, SmartPhone Technologies LLC. The second upped the ante to 22 firms and was filed by the somewhat quiescent although demonstrably extant California firm, MicroUnity.

Among the big boys, Nokia is suing Apple; Apple is countersuing Nokia, suing HTC, being investigated by the ITC in response to patent-infringement charges by Kodak, and has apparently decided to leave poor Palm alone despite rumblings last year that legal action might be in the works.

For its part, IV has not asserted its putatively "obscenely broad" motion-control smartphone patent. But an IV spokesperson did tell Digital Daily's John Paczkowski: "We don't currently have specific plans to announce regarding any asset(s) in particular, but we are actively talking with customers about licensing our invention portfolio on fair and reasonable terms."

And that "invention portfolio" has just gained a patent that might mean extended job security for intellectual-property legal teams worldwide.

Bootnote

In 2008, IV's Nathan Myhrvold was exalted in what what could only be called a fawning New Yorker profile by none other than mass-marketed culture-commentor Malcolm Gladwell. Read it only if you're interested in the confluence of dinosaurs, Alexander Graham Bell, and metastatic cancer cells, and not in the practice, principles, and propriety of patent trolling.

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