Original URL: http://www.theregister.co.uk/2007/09/06/google_leaps_on_patent_reform_bandwagon/

Google leaps on patent reform bandwagon

If reform is the right word

By Cade Metz

Posted in Law, 6th September 2007 23:21 GMT

Today, some of the biggest names in high-tech have their eyes on the nation's capital, where lawmakers are babbling about an overhaul of the U.S. patent system.

After years of lobbying from companies like Apple, Google, Microsoft, and Intel, the Senate Judiciary Committee has pulled together a very official hearing called "Patent Reform: The Future of American Innovation." Chairman Patick Leahy and his crew are debating the Patent Reform Act of 2007, a bipartisan bill introduced this spring in both the Senate and the House. The bill may turn up on the floor of the House as early as tomorrow.

Earlier this week, Google went public with its support of the bill, chucking a post onto its new public policy blog. The search engine cum world power is sick and tired of patent trolls, companies intent on using their patents to siphon money from other businesses.

"Unfortunately, the patent system has not kept pace with the changes in the innovation economy," wrote Johanna Shelton, Google policy counsel and legislative strategist, and Michelle Lee, the company's head of patents and patent strategy. "Google and other technology companies increasingly face mounting legal costs to defend against frivolous patent claims from parties gaming the system to forestall competition or reap windfall profits."

As a new member of the Coalition for Patent Fairness, a lobbying group whose membership reads like a who's who of the tech industry, Google has put its weight behind the Patent Reform bill as a whole, but there's a handful of issues the search giant is particularly excited about.

First off, it hopes to change the way courts award damages in patent cases. If a small portion of a product infringes someone else's patent, it believes, damages shouldn't reflect the value of the product as a whole. "A windshield wiper found to an infringe a patent should not spur a damage award based on the value of the entire car," Google said.

Along the same lines, the Mountain Viewers argue the courts should think twice before ruling that a company has "willfully" infringed a patent - a decision that warrants triple the damages. "That standard has been devalued. Punitive triple damages should be reserved for cases of truly egregious conduct."

Google also wants "post-grant review," which involves a quick reappraisal of questionable patents by the U.S. Patent Office, and a restriction on "forum shopping," which allows patent trolls file their cases with the most patent-troll-friendly courts. "The bipartisan Patent Reform Act would achieve many of these goals in a fair and targeted manner," Shelton and Lee wrote. "These reforms will go a long way toward modernizing the patent law system to ensure it continues as an engine for economic growth and innovation."

Of course, other groups have opposed the bill, including the Professional Inventors Alliance (PIA) and several big-name labor unions. Ronald Riley, founder and president of the PIA, refers to Google's lobby group as the Coalition for Patent Piracy. He believes its members are interested in nothing more than stealing inventions dreamed up by the smaller (and less wealthy) names of the world.

"These guys are flat-out crooks. They lie, cheat, steal, and paint their victims as victimizers," he told The Reg. "They're trying to create new mechanisms to abuse the patent process - to take property without paying for it."

Yes, the Patent Reform Act would help the likes of Google, but many believe they deserve some help. "In terms of litigation, most of the bill is certainly pro defense," says Patrick Fraioli, a patent lawyer with the California firm Moldo, Davidson, Fraioli, Seror, & Sestanovich. "But that doesn't mean it's bad."

Now that you can patent things like software and business processes, Fraioli says, the system doesn't work as well as it used to. "In the mid-90s, we saw an expansion of patents from mechanical things and physical objects, like drugs and machines, to software, which is more ethereal," he told us. "Patent litigation has become more like a lottery."

In fact, many patent gurus believe this new bill is pretty tame stuff. When Google posted its stance on the web, the first person to toss up a comment was Ben Klemens, a guest scholar with an independent think tank called the Brookings Institution and the author of Math You Can't Use: Patents, Copyright, and Software. All he wanted to know was whether Google was in favor of abolishing software patents entirely.

"I can't tell from your public statement here whether you in the public policy department support or do not support software patents per se, though I would bet you a dollar that if you surveyed your employees, the great majority would call software and business method patents an impediment," he wrote. "Why is Google supporting this tepid bill? Have you determined that it's time your engineers revise their ethical beliefs regarding mathematical algorithms? Or is a bill that would address subject matter problems just too unlikely to work?"

In his mind, it's hard to argue with any of Google's reforms. In the end, he says, they don't really mean much. "The frustrating thing about tepidity is that there's nothing wrong with it," he told The Reg. "You can't argue with what they say - but what they don't say is huge. The expansion of patentable subject matter to include software and business methods is the elephant in the patent office, and I can't help but wonder why intelligent patent professionals working for a software company are not addressing it."

So we called Google to ask about their stance on the matter. And they blew us off. ®