Puzzling Out Paul Allen’s Patent Suit Against Silicon Valley’s Giants

8/30/10Follow @wroush

There’s something odd about the patent infringement lawsuit that Paul Allen’s holding company Interval Licensing filed last week against an array of high-profile Silicon Valley and e-commerce companies. The organization, which is part of the Microsoft co-founder’s large array of Seattle-based business and technology ventures, isn’t saying exactly how it thinks the defendants—AOL, Apple, eBay, Facebook, Google, Netflix, Office Depot, OfficeMax, Staples, Yahoo, and YouTube—are infringing on four of its patents, issued between 2000 and 2004 to Interval Research, the now-defunct Palo Alto, CA, computer-science think tank that Allen co-founded with David Liddle in 1992. It’s just saying that they are.

“I can’t go into a lot of detail about that,” said David Postman, a spokesman for Allen, when I contacted him on Friday for more particulars about the suit. “And the complaint, as you’ll see, does not go into detail about that.”

Indeed, it does not. The 15-page document, filed Friday in United States District Court for the Western District of Washington in Seattle, lists the four patents and their titles, and accuses each of the 11 defendants of infringing on one or more of them. But it doesn’t point to specific programs, products, or websites that violate Interval’s intellectual property.

Postman says those kinds of details would emerge “as this process moves on,” presumably during a pre-trial discovery process or an actual jury trial, assuming that the parties don’t settle first. “Those things will become part of the discussion, certainly, but at this point, when you file the complaint, it is unfortunately a little complicated to explain,” Postman says.

The complaint also does not request a specific dollar amount in damages. “That’s also part of the process to come,” says Postman. “It’s all going to become part of the record, obviously. You can’t have the discussion without it, at some point. But it’s not required at the start.”

Such is the world of software patents, where organizations armed with broadly worded patents can mobilize battalions of lawyers and throw whole markets into uncertainty simply by filing non-specific infringement claims against one another. Oracle’s suit against Google for allegedly infringing on Java patents in its Android mobile operating system, filed a couple of weeks ago, is another case that’s got Silicon Valley watching with trepidation.

Postman says Interval is merely acting to protect Allen’s large investment in Internet technologies, many of which are now “used by people every day.” But without knowing precisely how Interval’s lawyers think the defendants’ product or services violate the four patents, the companies named in the complaint could only issue general responses last week.

“This lawsuit against some of America’s most innovative companies reflects an unfortunate trend of people trying to compete in the courtroom instead of the marketplace,” Google said in a statement. “Innovation—not litigation—is the way to bring to market the kinds of products and services that benefit millions of people around the world.”

Facebook, in a statement to Computerworld, called the suit “completely without merit” and said the company “will fight it vigorously.”

It’s difficult to know what to make of this lawsuit, and a big part of the reason is that the patents at issue are, at least to a journalist’s eye, vague and overarching. Interpreted broadly, they would seem to cover a good portion of what happens on the Internet today.

Here’s a brief rundown of the four patents (which, in effect, come down to three, since Patent No. 6,788,314 is merely a corrected version of Patent No. 6,034,652):

Patent No. 6,263,507: “Browser for Use in Navigating a Body of Information, With Particular Application to Browsing Information Represented by Audiovisual Data.” Issued July 17, 2001.

This patent describes an audiovisual news browser designed to present various pieces of video, audio, and text content on a single computer monitor. To quote from the patent: “The invention can be used to review news stories acquired during one day from several television news programs (e.g. CNN Headline News, NBC Nightly News), as well as from text news sources (e.g., news wire services, traditional print media such as newspapers and magazines, and online news services such as Clarinet).” There’s mention of an idea for speeding up a video broadcast to facilitate skimming, and of automatically identifying and juxtaposing related news stories from different sources.

The suit says that AOL, Apple, eBay, Google, Netflix, Office Depot, OfficeMax, Staples, Yahoo, and YouTube are infringing on the Interval patent “by making and using websites, hardware, and software to categorize, compare, and display segments of a body of information as claimed in the patent.”

Patents No. 6,034,652 and 6,788,314: “Attention Manager for Occupying the Peripheral Attention of a Person in the Vicinity of a Display Device.” Issued March 7, 2000, and September 7, 2004, respectively.

These patents are for software that places information from various content providers in unused areas of a computer display at scheduled intervals, or after a set idle period. The idea is similar to PointCast’s “push media” PC screen saver from the late 1990s. In fact, the patent’s “Related Art” section references screen savers and wallpaper, claiming that they “have not heretofore been used as a means to convey information from information providers to computer users” or to “enable retrieval of display content from a remote location via a computer network.” (The earlier of these two patents was evidently filed before PointCast’s release.)

The suit says that AOL, Apple, Google, and Yahoo are infringing on these two patents “by making, using, offering, providing, and encouraging customers to use products that display information in a way that occupies the peripheral attention of the user as claimed in the patent.”

Patent No. 6,757,682: “Alerting Users to Items of Current Interest.” Issued June 29, 2004.

The most concise and detailed of the Interval patents at issue, this one describes a system that sends real-time alerts to Internet users whenever it finds items on the Web that relate to their previously expressed interests.

The Interval complaint alleges that all 11 of the defendants are infringing the patent “by making and using websites and associated hardware and software to provide alerts that information is of current interest to a user as claimed in the patent.”

Broadly speaking, the four patents would seem to cover features that are almost ubiquitous on the Web today, from RSS news readers to personalized news and e-commerce sites. But with the exception of the final patent, which seems to prefigure Google Alerts pretty accurately, it’s hard to see any obvious one-to-one correspondence between the ideas in the patents and specific products or services from AOL, Apple, eBay, Facebook, Google, Netflix, Office Depot, OfficeMax, Staples, Yahoo, or YouTube.

Presumably, Allen’s lawyers at Seattle’s Susman Godfrey wouldn’t have picked the 11 defendants named in the complaint if they didn’t have examples in mind of specific products or websites that infringe on each of the patents. But that’s precisely the information that won’t be shared until later in the suit, according to Postman.

Given the breadth of several of the patents, and the apparent ubiquity of the ideas they describe, I asked Postman whether Interval and its legal team are contending that the defendants’ alleged infringement was deliberate, or whether it could have been accidental.

“We will be able to show that the companies should have known that they were infringing on the patents,” he responded. “Some of these processes have clearly become key to the Internet in e-commerce and search, and they are used by people every day. Just because something is familiar doesn’t mean the technology is in the public domain.”

Responses to the suit in the blogosphere have ranged from uncomprehending to viciously negative, with some critics comparing Allen to the “patent trolls” who buy up intellectual property merely in order to file infringement suits. Dean Takahashi, writing for VentureBeat, called the suit “thinly veiled highway robbery.”

But in a press release announcing the filing of the complaint on Friday, Interval argued that the lawsuit is necessary to protect its “investment in innovation.” The organization emphasized that the patents at issue were developed “by and for Interval,” not purchased from other companies.

“Interval was founded to create cutting-edge technology,” Postman underscored to me. “This was really Paul’s effort to create a Xerox PARC-type operation for the Internet age. And they were early and right on a lot of key pieces of the Internet—what Paul has always referred to as the ‘wired world.’ Some of those patents ended up going to market as products, others were licensed off, and now this is the step we are at in the process.”

“Paul invested heavily in innovation back in the late 1990s, and now we are moving to protect that investment in innovation,” Postman says. “At its root, that is what this is about.”

Wade Roush is a contributing editor at Xconomy. Follow @wroush

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  • http://www.patentattorneynewyork.net NY Patent Attorney

    There’s nothing strange about Allen’s silence regarding how the accused products infringe the patents-in-suit. There’s no legal requirement for patent plaintiffs to discuss their infringement theories apart from what’s required in the complaint, not to mention the fact that any such discussion could be damaging to his case.

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