Google’s reexamination requests against two Lodsys patents don’t stand on their own

“Wired.com just reported that Google filed reexamination requests with the USPTO late on Friday, seeking the invalidation (or at least narrowing) two of Lodsys’s four patents: the ‘708 patent and the’565 patent, both of which were used in litigation against app developers,” Florian Mueller reports for FOSS Patents.

“While I agree with Google’s senior vice president and general counsel Kent Walker that those patents should never have been issued, I don’t consider those reexamination requests — unless they will be accompanied by more forceful and useful measures very soon — a serious commitment to supporting Android app developers against trolls,” Mueller reports. “If this is all that Google does, it’s too little, too late, and calling it ‘half-hearted’ would be an overstatement.”

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Mueller reports, “Let me make this very clear: reexamination of Lodsys’s patents certainly could have positive effects further down the road. It’s possible (though by no means certain) that Lodsys’s ongoing litigation might be stayed – however, as Wired’s article explains, this happens in the Eastern District of Texas only ‘around 20 percent of the time.’ In other words, there’s an 80% likelihood, just based on statistics, that Google’s reexamination request won’t delay Lodsys’s litigation.”

Read more in the full article here.
 

Related articles:
Apple insists to intervene in Lodsys lawsuit against app developers – August 9, 2011
Indie developer organizing ‘Operation Anthill’ coalition against Lodsys, patent trolls – August 2, 2011
Lodsys sues Rovio, EA, Atari claiming patent infringement – July 21, 2011
Lodsys sues The New York Times Company and five others in East Texas – July 5, 2011
Lodsys asks for two more months to answer Apple’s motion to intervene – June 22, 2011
Lodsys: Apple & Google may be contractually precluded from challenging Lodsys’s patents – June 16, 2011
The New York Times Company and OpinionLab sue Lodsys – June 14, 2011
All four Lodsys patents now also challenged in Southern California AV software maker ESET – June 13, 2011
Apple enters legal fray against Lodsys, files motion to intervene – June 10, 2011
New lawsuit may render Lodsys in-app purchase patents invalid – June 8, 2011
Lodsys sues 7 app developers in Eastern Texas; Mac and Android devs also targeted – May 31, 2011
Lodsys also threatens Android developers with legal action over in-app purchases – May 27, 2011
Full text: Apple Legal’s letter to Lodsys – May 23, 2011
Apple: iOS developers already licensed for Lodsys patents – May 23, 2011
EFF calls on to Apple defend iOS developers in Lodsys legal threats – May 21, 2011
Following Lodsys legal threats, Apple reportedly stops approving iOS apps with In-App Purchases – May 18, 2011
Lodsys defends legal threats: Apple is licensed, iOS developers are not – May 16, 2011
Lodsys threatens Apple App Store devs with lawsuit over In-App Purchases – May 13, 2011

8 Comments

      1. Thank you for making clear thar you are a big supporter of patent trolls and extortionists. I guess you hope Appke loses its bid to protect appstore devs under their lodsys license

        1. I believe he is actually hoping that Android’s license turns out to not cover developers and that Apple’s does. That way, Android will suffer from developers jumping ship.

          That’s, at least, what I inferred from what was written by Bln above.

  1. As many readers of this blog are likely aware, Lodsys has asserted that many application developers are infringing claims of its U.S. Patent Nos. 7,222,078 and/or 7,620,565 (I’ll refer to them as the Lodsys Patent Claims).

    While these patents seemingly expire August 6, 2012 (as a result of the priority claims and the terminal disclaimers that were filed in each patent), Google nonetheless continues its quest to invalidate the Lodsys Patent Claims. It is worth noting, that once a patent expires or is invalidated, it cannot then be infringed by anyone.

    In summary, Google initiated Reexamination proceedings with respect to U.S. Patent No. 7,620,565 (Reexamination Control No. 95/000,638) and U.S. Patent No. 7,222,078 (Reexamination Control No. 95/000,639) seeking to invalidate the Lodsys Patent Claims. The patent office adopted a majority of Google’s proposed rejections. In response, Lodsys submitted Declarations seeking to overcome the patent office rejections (and particularly U.S. Pat. 5,965,505).

    The Declarations submitted by Lodsys identified a number of reports authored by Daniel Abelow and Dr. Barbara Flagg. Interestingly, these reports were dated Spring 1991 — which is more than one year prior to the earliest filing dates of the Lodsys patents.

    Google, seizing upon this, now proposes a number of additional rejections and enforcement issues based on these reports. For example, Google now proposes that the Lodsys Patent Claims are invalid under 35 USC 102(b), because:

    1. one is not entitled to a patent if the invention was described in a printed publication more than one year prior to the date of the application for patent, and the reports predate Lodsys’s relevant patent application by more than a year;
    2. one is not entitled to a patent if the invention was in public use, more than one year prior to the date of the application for patent, and the Declaration/reports indicate such a system was pilot tested and open to a number of students; and
    3. one shall be entitled to a patent unless the invention was on sale in this country, more than one year prior to the date of the application for patent, and the Declaration/reports indicate Harvard accepted a proposal (arguably prior to Spring 1991) that was successfully completed.

    If Google is correct on any of these points, the Lodsys Patent Claims appear to be unpatentable or invalid.

    Google also notes that Lodsys never submitted the reports to the patent office despite its obligation to disclose information that may be material to patentability. A violation of this duty with respect to any claim could render all claims unpatentable or invalid.

    In sum, the Lodsys Patent Claims seem to expire this summer and Lodsys’s efforts to keep the Lodsys Patent Claims from being invalidated have seemingly opened up a lodestone of new arguments that may be used to mitigate their impact. Stay tuned.

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