back to article IT'S patent WAR: Apple, Microsoft vs Google, Samsung, Huawei

The group that beat Google in the bidding for Nortel's patents is now using those patents to sue the advertising giant along with a whole bunch of other tech firms. Rockstar – a consortium of Apple, Microsoft, BlackBerry, Ericsson and Sony – secured the intellectual property for the princely sum of $4.5bn back in 2011, and is …

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Here we go again...

Whilst I understand the need for patents, I'm really not sure about the idea of buying "ideas" and then using that to sue other companies.

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@DaveK Re: Here we go again...

When you consider that your IP is a tangible asset, you set yourself up for this type of thing.

What you are saying is that you understand that if you create some IP, you have the right to sue someone for stealing your idea. Yet you don't understand that if you sold your company and your IP that the guy you sold it to doesn't have the right to protect the business he just invested his money in?

Sorry, but really?

Getting serious for a second, just a second...

The issue isn't with the law, but with the patent in the first place.

What are they suing over... how to associate a term with an advertisement?

"According to court filings, Rockstar is asserting seven patents against Google, which cover technology that matches search terms to relevant advertising, the company's core business. "

Really?

Its these software patents that are incredibly bogus in the first place.

Software patents are a joke. You want to fix this... reform patent law and remove software or business process patents. There may be multiple ways to skin a cat, but they are finite and some are more optimum than others...

Just saying...

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Re: Here we go again...

I do not understand the need for patents nor do I see the need for a buy-in monopolist-of-ideas called "Rockstar".

Clearly something that can be solved by the appropriate use of accidents and AWPs.

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Anonymous Coward

Re: Here we go again...

Ideas are presumably in such short supply in the USA that they are worth something there....

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Anonymous Coward

Re: Here we go again...

It's called an investment. People are always buying things hoping to make a profit on what they buy.

It's all part of capitalism, making money and not really giving a shit how.

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Troll Herder Required..

Can we please entice all these people into a bog at Hogwarts and slay the lot of'em.

BTW I wish to claim the patent on :-

"The business model of buying someone else's patent on the bleeding obvious. Then suing the arse off competitiors of my client, for using said bleeding obvious techniques in their, 'possibly superior', products."

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WTF?

So Nortel had all this IP which all these companies are apparently infringing and it decided to sell it off rather than sue their way to bonuses all round? Either there is no infringement or Nortel were too nice to survive anyway.

Why the hell is it possible to buy IP and then sue people for products which the previous IP owner did not object to. Surely the lack of legal action is an implied permission?

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Byz

Re: WTF?

Patents are not there to stop people using technology (and never have been), they are there to make sure the owner of the IP gets paid when others use it and they can exercise that right at any time they see fit as long as the patent is not expired. This is why patents have an intrinsic value.

There was a case ten years ago about a compression algorithm that was patented in the US (wouldn't be allowed in the UK) loads of people had been using it for many years and IP owner then decided to extract the money once everyone was using it :o

This is also why WWW is used rather than gopher (which was common when I started using the internet at university) the IP owners of gopher would not promise never to extract a fee, whereas Sir Tim Burners-Lee persuaded CERN (after a lot of arm twisting) to promise never in the future to extract a fee and the rest is history.

All these companies would have known what they were doing (as they all have huge legal departments), but were gambling that the patent would not be enforced (as they probably had deeper pockets than Nortel). Unfortunately the gamble didn't pay off and it's time to pay the piper.

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Re: WTF?

Why the hell is it possible to buy IP and then sue people for products which the previous IP owner did not object to. Surely the lack of legal action is an implied permission?

If the patent holder waits too long, there is a defence of "laches" available. Quite how this plays out when you get a change in holder, I don't know. I guess we'll find out.

"Laches" from the venerable Wikipedia

IANAL, though I used to read Groklaw.

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Re: WTF?

Quote:

There was a case ten years ago about a compression algorithm that was patented in the US (wouldn't be allowed in the UK) loads of people had been using it for many years and IP owner then decided to extract the money once everyone was using it :o

Details?

IANAL but I have a couple of patents so I generally know the ropes.

Waiting without acting until your tech is prevalent and then suing for infringement is unlikely to receive much sympathy from a judge. If you have any IP you are obliged to be diligent in defending it. I think the legal term would be "laches".

http://en.wikipedia.org/wiki/Laches_(equity)

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Re: WTF?

I don't think the change in holder much matters.

The new holder would be a successor in interest and would not only inherit the original owners' IP but also the consequence of their laziness. Of course such common sense doesn't make much difference to MS, Oracle, Apple et al - as you can see by their eagerness to return to the courtroom even though all of their previous visits have ended up getting them absolutely nowhere.

It comes down to the psychopathy of corporations. MS,Ora,Apple have psycho shareholders and to keep the psycho shareholders happy the executive have to do psycho things even though they are fully aware the chances of prevailing with Nortel's bag-o-shite is roughly the square root of fuck all.

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@Byz - Re: WTF?

Actually in this case patents are being used just for that, to legally drive somebody out of business (see the concept of willful infringement).

You also seem to know something about gambling with patents but you get it wrong. The companies are gambling on the fact that the patents are bogus. Paying anyone who has claims on a patent irrespective of wether he is right or not is never a good business practice.

Unfortunately because of USPTO stupidity it will take a long legal battle and hundreds of millions of dollars in order to validate if "matching search terms to relevant advertising" is a patentable matter.

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@Byz

I was all set to give you a thumbs up. But you had to put the last paragraph in there and ruin it.

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Re: Details?

I'm guessing he's talking about the now irrelevant GIF spat, although I think there was a similar issue for some zip formats. They both followed similar lines: dissemination in a popular forum until it was a defacto standard at which point the patent holder asserted his IP rights.

I think we need limited duration IP monopolies to encourage innovation. But I have a huge problem with these sorts of trap door lawsuits. I think they're actually an even bigger problem than the patent trolls who buy the rights from the original holders. I think in order or most offensive problems I'd rank:

1) Trap lawsuits like the GIF/ZIP spat

2) Patent trolls

3) Unending extensions of IP rights

4) IP rights which are too broad and/or not properly researched for prior art/existing public domain.

And I'd rank item 4 as bad enough to break the system by its lonesome.

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Re: WTF?

Wasn't this the GIF patent? Hence PNG being created.

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Byz

Re: WTF?

@Carl

Someone has mentioned it below it was the algorithm use in zip compression.

There was also one involving a chip made by casio at some point

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Byz

Re: @Byz

@Byz

I was all set to give you a thumbs up. But you had to put the last paragraph in there and ruin it.

@Tom 13

Like patent gambles win some, you lose some ;)

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Unhappy

Re: WTF?

Nortel were probably to nice, having been lucky enough to do my work experience at their Harlow base they were very lovely (Spent a million quid on a garden as a few people wanted it, the best coffee machines I have never found again, etc...).

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Re: WTF?

IIRC, in both cases it was the Unisys LZW compression patents that was the issue.

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Re: WTF?

Why the hell is it possible to buy IP and then sue people for products which the previous IP owner did not object to. Surely the lack of legal action is an implied permission?

If the patent holder waits too long, there is a defence of "laches" available. Quite how this plays out when you get a change in holder, I don't know. I guess we'll find out.

While, IANAL, the best answer is it depends and laches may not apply...

First the issue raised by the OP ...

Just because the prior owner doesn't sue, doesn't mean that you can't or won't.

Nortel would have to spend $$$ hiring lawyers taking the offending company to court.

They didn't have the money or felt that it was worth the risk.

Second, they would also have to have proof of the infringement.

You can't sue someone just to see if they did or did not infringe on your patent.

(That's called a fishing expedition. Note that some things under tort law are different.)

Which then leads to the laches issue. In order to apply laches as an affirmative defense, you have to show that the injured party knew, or that a reasonable person should have known that the infringement occurred and that they waited too long to object.

In order to use this as a defense, Google would have to show that the party who bought the rights to the IP knew of the infringement.

This is why they are making a point of why Google bid on the patents and continued to bid up to 4+ Billion USD.

The more you know...

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@ Carl... Re: WTF?

Not quite.

First under US patent law, you can't patent a mathematical formula So the algo itself would most likely not stand.

With respect to laches, the defendant would have to show that the patent holder knew of the infringement. Note that is know and not suspected of the infringement.

And yes, to your point, the moment that you know of the infringement and can show that there was infringement, you are obligated to start the legal process. Note that it doesn't mean that you have to sue right away.

You can start with letters between lawyers and even issue a cease and desist request/order. If the infringement continues unabated, and it takes a couple of years to sue... you couldn't use laches as a defense.

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Hands up anyone that didn't see this coming

Anyone? Thought not..

Pretty much gonna echo what others have said and wonder just how this sort of crap is allowed to happen. Buy patents, sue the company that tried to buy them and a large portion of the contributing Android manufacturers. I'd be very interested in seeing if Sony were willing participants in this sueball. There has got to be some law that if a patent isn't defended despite supposed infringement for X months / years then it's voided. I refuse to believe Nortel just sat on the patents and watched Google et al infringe them for all that time.

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Re: Hands up anyone that didn't see this coming

I'd be very interested in seeing if Sony were willing participants in this sueball.

I remember reading mention somewhere that Sony has a bit of a multiple personality disorder (my paraphrasing)... essentially their technology arm are so far removed and at odds with their entertainment arm ideologically as well as goals; it's a wonder the company hasn't split already and started suing each other.

Still it would be interesting to see if Sony lose the right to use the Android trademark and Google Apps after this.

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Re: There has got to be some law that if a patent isn't defended...

In the US there isn't. This is probably the simplest partial fix that could be applied to the system and I expect would get broad support form voters. It's getting a Congresscritter to propose and then get it passed that's the hard part.

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Sony?

Suing Google? You do realise you use them in your products right? EE DEE OH TIC!

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This could all have been avoided if...

...Google sucked up their pride and actually accepted Microsoft's invitation to join the consortium before bids were made instead of going for the lot and loosing it.

And don't think Google would have been the better buyer, by their own words they wanted the patents purely to sue other companies.

http://www.ibtimes.com/microsoft-says-google-invited-bid-google-says-invitation-trick-823911

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Re: This could all have been avoided if...

And you know the details of that deal how?

MS never does anything in the name of teamwork, much less largesse.

My idea is the terms of the deal contained an anti-open-source poison pill that had Google's lawyers reaching for their defibrillators.

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Anonymous Coward

Re: This could all have been avoided if...

Your understanding is pretty limited here. Microsoft, Apple and others are waging war against Android so if Google would have join Microsoft in buying those patents, they would have spent billions for nothing because those patents become useless as a defensive weapon against Microsoft and Apple. This is the proof that Google was not looking to buy them for offensive purposes while Microsoft and pals did exactly that. Adding on top of this, Microsoft spread the rumour that Google refusal to join is the proof they wanted those patents to sue world plus dog.

It was un uncomfortable situation for Google, buy a useless weapon or see it being turned against them. Now the only thing that might save them would be for all those companies to unite in their legal battle.

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Anonymous Coward

Re: This could all have been avoided if...

Laughing at the idea that Android is open source.

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Re: This could all have been avoided if...

Bloody hell its not Star Wars, its just business transactions.

Also lets try and stick to facts and logic here.

Google would not have spent billions for nothing because firstly they wouldn't have spent billions, in a five way split of $4.5billion they wouldn't have even spent a billion. Secondly as this news piece shows, they would have garnered themselves protection, thats not nothing. It would also put Microsoft, Apple and RIM in the same position because they would have spent under a billion each with nobody to attacks because pretty much all the OEMS would fall under the umbrella protection of Apple, Microsoft, RIM or Google.

Now what Microsoft showed wasn't rumours, they showed the email invitation, Google's reply and Google even responded explaining their reply and even then that wasn't shown to show Google wanted to sue people, it was shown because Google complained about the consortium winning the Nortel bid (and thusly Google losing the bid).

There was no uncomfortable position, if Google joined, it would have gained protection for all its Android OEMS and make the consortiums patent's useless as an offensive measure because there'd be nobody left to extract money from.

Also defensive patents are used as a passive aggressive offence. Having full ownership of these patents would allow Google to infringe on other companies' patents (legitimate and non-legitimate) because they'd use the fear of the Nortel patents as a backlash to prevent it going to court. All the companies in this spat, Google included, have attempted this tactic.

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Anonymous Coward

Oh Fuck-Off !

The only losers in this whole cartel saga are us the consumers who end up paying higher prices while lawyers and executives get rich

My apologies for the strong language at the beginning but this stirs strong feelings. They should make all phone patents null and void to end this stupid situation.

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Sony

Nice Android phone business you got there. Would be a shame if someone decided to pull your licence to the Google apps.

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Re: Sony

Not that nice. Sony lose money on Android.

Only Samsung are making money from it.

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Anonymous Coward

Re: Sony

Everyone involved in Android loses money on it except Samsung, not just Sony.

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Re: Sony

"Everyone involved in Android loses money on it except Samsung, not just Sony."

Really ?

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Re: Sony

"Everyone involved in Android loses money on it except Samsung, not just Sony."

Erm, surely Google, Microsoft and Nokia also make money from Android?

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Anonymous Coward

Spare a dime guv?

Is this a work creation scheme to provide underemployed Blackberry lawyers something to while away the hours before they are laid off?

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Willful infringement?

You mean, because Google wanted to buy a hoard of thousands of patents, it automatically means that they knew every single one of these patents, and estimated whether or not they were infringing it?

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Re: Willful infringement?

Yes.

This answer brought to you by the Eastern District of Texas

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Re: Willful infringement?

Yes because by making an offer Google's has given credence to their legitimacy. After losing the bid Google kept using those patents after having classed them as legitimate.

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Anonymous Coward

It woukd be quite funny if Google managed to get a re examination which showed that the patent was invalid.

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Anonymous Coward

quite funny

"It woukd be quite funny if Google managed to get a re examination which showed that the patent was invalid."

even funnier if they didn't :-D

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Sad, sad people

Am I the only one finding all these patent battles totally pathetic? These companies don't seem to have the guts or the brains to fight fairly in the market place so they have to resort to suing each other over patents that they themselves did not invent or take out. A judge needs to strike down all the ridiculous patents or make it so the patent becomes invalid if the original owner is either bought or goes out of business. These patent wars are bad for consumers and also bad for innovation, because it discourages smaller players into the market.

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Re: Sad, sad people

Not if the original patent holder sells it. I can see idea people making a living from patenting their ideas and then selling them to manufacturers. The problem is multi-fold as I listed above. One of the things we need for situations like this is a protocol where a company who buys patents at an auction like Nortel held negotiates deals with people whom they claim are infringing on their patents. Part of that would need to be spelling out in detail exactly what parts of which patents are being infringed. Another part would be a "reasonable man" standard for pricing on the patents. I'm thinking something a bit looser than FRAND if the patent isn't incorporated into a standard. And any patent which is incorporated into a standard with the participation of the patent holder must be covered by FRAND or the company forfeits their patent.

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Byz

Re: Sad, sad people

Trouble is that FRAND would not apply to linking searches with adverts as Google is a virtual monopoly when it comes to search engines, so FRAND only benefits Google.

Google wiped vitally everyone out when they weren't paying anything so making it FRAND would raise the price and Google would have even bigger advantage on search engines.

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Re: Sad, sad people

I think even FRAND patents should be disallowed. If your company did not invent the technology at issue why should you have the right to charge other people to use it?

The vast majority of these companies would not be in existence in the first place without technologies that were invented and given out for the public good. The biggest example of this is the World Wide Web invented by Tim Berners Lee, if he had patented the World Wide Web it is extremely doubtful that Google, Apple and Microsoft would have got anywhere near the size they are currently (and you could argue that the former 2 would not be in existence). Similarly a lot of the technology in phones and tablets themselves were originally invented by the US and UK military in combination with Universities around the world. They gave this technology out for free, so why on earth should these companies be allowed to charge people to use them?

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Re: Sad, sad people

>Trouble is that FRAND would not apply to linking searches with adverts

That's because there isn't a Standard, doesn't mean that one couldn't be created...

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Oh pleasepleasepleasepleaseplease!

Let Rockstar Games sue the bejesus out of this patient troll consortium for copying their (presumably trademarked) name.

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Byz

Re: Oh pleasepleasepleasepleaseplease!

Trademarks are related to the industry your in

Rockstar games are in software and games.

This lot are under Patient Troll

Different trademarks :o

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Re: Oh pleasepleasepleasepleaseplease!

Not very patient trolls....

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