On June 1, Oracle filed an action for declaratory judgment of noninfringement and invalidity of Lodsys' US Patent Nos. 5,999,908, 7,133,834, 7,222,078, and 7,620,565. In support of declaratory relief, Oracle states Lodsys sent notice of infringement letters with claim charts along with follow up emails and phone calls to dozen of Oracle's customers, who of course want to be indemnified. Lodsys has even sued some of Oracle's customers including Walgreen, REI, and Epicor in the Eastern District of Texas.
The press give Oracle lots of kudos for suing to invalidate the Lodsys patents. Groklaw reports Oracle Sues Lodsys! "Oracle is now the good guy. Major good guy.... Get a load of all the prior art Oracle lists.... Lodsys has made a mistake.
One doesn't go after Oracle's money. No. No. Never a good plan.... I suspect Oracle
will go for damages, tripled, and all their expenses, legal fees, etc. when this
is over.... DLA Piper is a global law firm with 4,200 lawyers so no place to run or anywhere on earth to get away from DLA Piper and its hard-core patent warriors. GigaOm tells us "Larry Ellison's company gets to be the good guy" in Oracle sues to smash patent troll Lodsys.
Oracle suing Google for patent infringement does not in my mind make it "a bad guy" nor does filing a declaratory judgment action against Lodsys make it "a good guy." Oracle and the press are merely taking predictable steps based on the following:
1. Oracle is aggressive and believes the courts are open for business. I say this not due to any inside information, but just watching Oracle in action for years. If Oracle believes you infringe its IP rights, it will tell you this and if you refuse to pay for a license, Oracle will go to court to resolve the differences. On the other hand, if you believe Oracle infringes your IP rights, it will review the charges, and if it disagrees is willing to go back to court to resolve the differences.
2. The press tends to give Oracle a hard time and buys into the myth that it is not nice to sue for patent infringement. So Oracle is "a bad guy" for suing Google for what it believes constitutes patent infringement? The irony is not the bad to good guy switch, but that many other companies (e.g., Apple in mobile patent wars) escape these labels and assert patents more vigorously to exclude others from using, making, selling, offering for sale, or importing their patented inventions.
3. Company management has a duty to manage all corporate assets. If a patent is infringed, valid and enforceable, management must maximize the return on the patent as a corporate asset. This is why Apple, Google, Microsoft, Motorola, Oracle, and Samsung continue to aggressively turn to the courts to assert IP rights. They seek a return on IP rights (e.g., patent, copyright, trade secret) and to reduce the IP licensing fees. Here Oracle customers were being threatened and sued and were asking Oracle indemnify them. Seeking to remove that expense made Oracle's DJ action forseeable.
4. A typical jury may be influenced by the myth that a patent owned by someone who practices the invention (e.g., Apple) is different than a patent owned by someone who does not. Hence, the complaint (demanding a jury trial) mentions Lodsys is not practicing the invention, i.e., it is a "patent troll." But US patents have nothing to do with whether the invention is commercialized or not (sometimes it takes years!) US patent law only cares about whether the invention is practiced when it comes to a remedy ( i.e., practicing patent owners may be awarded lost profits and non-practicing owners are typically limited to a reasonable royalty as damages).
5. The press tends to villify the "patent trolls" who seek licensing fees and disparages the inventors too! Dan Abelow, who I have never met, is disparaged as the self-styled inventor with no science degrees. However, the following link: www.abelow.com says Mr. Abelow has degrees from Harvard and the Wharton School of Business which appear to be adequate background for the four patents. Although I don't appreciate Lodsys' tactic to threaten the small software developers (where's the money?), Mr. Abelow's patents have been licensed by over 200 companies including Apple, Google, Microsoft, Nokia, Verizon, Sony, and Netflix. Somehow these things about this "patent troll" never get much mention.
Copyright © 2012 Robert Moll. All rights reserved.
