Google Patent Lawyer Talks Shop

The Wall Street Journal interviewed Google’s patent counsel, Tim Porter. Below are some highlights, and my awesome commentary (this is a blog after all).

In the context of Android’s rise to power, and a plurality of the smartphone market, WSJ asks Porter about the ongoing litigation surrounding Android and Google, and his thoughts on our patent system, generally (SPOILER ALERT – he thinks it sucks).

Google has sued by Oracle, Apple and Microsoft. Porter has to deal with that.

On Microsoft’s pressuring for licensing agreement: “When their products stop succeeding in the marketplace, when they get marginalized, as is happening now with Android, they use the large patent portfolio they’ve built up to get revenue from the success of other companies’ products.”

I agree. Porter’s statement is probably conventional wisdom. Microsoft’s response is probably along the lines of: ‘we have legitimate patents, and we have every right to use them.’ Also fine. Don’t hate the player, hate the game.

On patent litigation discouraging innovation: “You didn’t see Microsoft’s first software patent until 1988. By that time it had come out with Word, not to mention DOS . . . you can look back and see that innovation happens without patents. It’s also true that since there weren’t patents, there wasn’t software patent litigation.”

Software patents bother a lot of people. There’s a meme on Slashdot.org where if you add “on a smartphone” you can get a patent granted. This of course follows the “on the internet” meme of several years ago, and probably the “on a BBS” preceding that.

On whether software should be patentable? “[U]ntil 2007, when the Supreme Court finally said that the patent examiners could use common sense. Patents were written in a way that was vague and overly broad. (Companies are) trying to claim something that’s really an idea (which isn’t patentable). There are only so many ways to describe a piston, but software patents are written by lawyers in a language that software engineers don’t even understand.”

Presumably, Porter’s referring to KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007). (Google it). What Porter’s doing is blaming lawyers for the system which provides his (and most lawyers) primary basis for employment. You’re not alone, Tim Porter! I happen to think that most of the justice system is broken too! And yet I come to work each day and love every minute of it. How do we manage?

Q: What’s an innovation worth protection and what’s just fodder for patent trolling? “The legal system should say you shouldn’t patent something that’s obvious. . . Patents are supposed to be a form of property. The property system doesn’t work if you don’t have clear boundaries.”

We already do have an obviousness rule. Clear boundaries would make things easier, but might not be as just. I’d like to see a proposal for something that creates a bright-line rule and retains due process.

Q: On Microsoft’s lawyer saying that the current patent lawsuits are unfortunate, but a normal historic event that follows disruptive technologies. Paraphased: it didn’t happen to Microsoft when they were young and hungry, and the last time it happened (during the age of steam) it resulted in stagnation until the patents expired. He ends with, “So what I think we’re hoping to avoid is this intense focus on litigation to the degree that we all stop innovating.”

Porter seems to be calling Microsoft’s lawyer’s BS. I don’t know about the history of steam engine patents, but I do agree that Microsoft didn’t have this kind of litigation to deal with 25 years ago. There’s no way in hell we’re all going to stop innovating. Ain’t gonna happen. There’s still plenty of money to be made, regardless of patent litigation and regardless of infringement. Stifling innovation seems probable though.

Q: Why’s Google buying so many patents all of the sudden? “Google is a relatively young company, and we have a smaller patent portfolio than many others. So it’s certainly true that part of our intent in buying these portfolios is to increase our ability to protect ourselves when people assert patents against us or our partners.”

Obvious questions get obvious answers. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007).