Thursday, March 28, 2013

Google's Open Patent Non-Assertion Pledge - Dipping a Toe in the Water?

Today, I am hearing that Google has a patent pledge (legal terms here) to decrease patent threats to the open source software community. In short, Google pledges not to file a patent infringement suit against a provider or user of open source software (OSS) unless it is sued first. Since the OSS community is unlikely to sue Google for patent infringement, I don't see this is an escape clause. See Google's explanation about the pledge (here).

IBM pledged 500 patents and Sun 1,600 patents to OSS so what's on Google's list? The pledge list (here) says four US patents, four US published applications, and two PCT applications. A published application can generate pre-issuance royalties if a US patent issues, a claim proceeds from publication to issuance unchanged, and an infringer is given actual notice, but a PCT application gives no royalty rights only the right to file later. So does Google file foreign patent applications via the PCT applications or stop at the PCT stage to save some cash? Even if we call it ten patents the pledge involves less than 0.06% of Google's patent portfolio assuming it owns about 17,000 US patents. FOSS says this is a PR stunt (here) but maybe it's the start of a bigger pledge and this is "dipping the toe in the water."

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