Google’s policy statement on patent reform reiterates its desire that patents should be worthless.
Zachary Silbersher
On April 28, Google published a policy statement on the need for specific patent reforms. The statement was published by Google’s General Counsel, Halimah DeLaine Prado, and titled, Reforming the patent system to support American innovation.
The statement is a notable read given that it issued from one of the largest Big Tech companies. Patents and Big Tech are a strange mix. While we are purportedly living through an era of groundbreaking technological innovation, rife with trillion dollar valuations, it is peculiar that none of these companies have pointed to their success as based upon patent rights. On the contrary, the rise of Big Tech has correlated with diminishing patent value—which ironically increases the power of Big Tech.
Google’s recent policy statement identifies four concrete areas where patent reform is purportedly required. Behind its prescriptions lingers its agenda—namely, that patents should have no value at all.
First, Google calls for “reversing the rising tide of wasteful litigation.”
Google points to a report from RPX that purportedly shows a 46% increase in patent lawsuits from 2018 to 2021.
Yet, the RPX report itself spells out that the trend of NPE patent cases is “heavily influenced” by a single company—IP Edge. The RPX report also explains that IP Edge more than doubled the number of patent cases it has filed between 2018 and 2021. If the data illustrates that there a single highly prolific patent NPE-filer out there, then that’s what the data illustrates. Not necessarily a “rising tide.” Nationwide patent reform should not be predicated upon the conduct of one or two prolific patent-filers.
Google also claims that it is a resourceful company who can “defend our users and products.” It states that its policy prescriptions are instead concerned with smaller companies who purportedly lack the resources to do so. That’s very generous of Google. But it’s also ironic. If patents had more teeth, and Big Tech did not continually promote more ways to easily gut them, that would be a boon to those smaller startups that Google claims to be protecting—i.e., the same ones who have repeatedly faced the Big Tech tactic to forego an acquisition and simply copy your stuff with impunity.
Finally, Google’s suggestion that wasteful litigation is the exclusive province of the purported “patent troll” is belied by its own conduct. Google’s most notorious recent patent fight has been with Sonos—which is a competitor, not an NPE. Yet, rather than defending the suit on its own terms, Google launched a counter suit that not only created more litigation, but asserted patents that were not “homegrown” Google patents. (Facebook has done the same thing.)
Second, Google calls for “Investing in the Patent Office.”
There exists a veritable debate over whether the USPTO could enact reforms to increase patent quality. Google raises worthwhile questions whether USPTO Examiners are overworked and whether the Office could afford more funding to do a better job.
Yet, Google talks out of both sides of its mouth. It claims that an overburdened Patent Office reduces patent quality across the board, and according to Google, “[t]his isn’t fair to anyone except patent trolls.” Yet, in the same post, Google prides itself for having 42,000 homegrown patents.
If Google is so concerned about reducing the burden on the Patent Office so as to improve patent quality, why does a company that went public only 16 years ago have so many patents? (Worse, none of these patents presumably cover the company’s bread-and-butter technology—namely, its search algorithm.)
Like many statements of this ilk issued by Big-Tech companies, Google scoffs at the scores of purported “low quality” patents “that should never have been granted in the first place.” Are we really to believe that all of Google’s 42,000 patents are shining paradigms of brilliant innovation whereas patents asserted by NPE’s are simply “wasteful” by virtue of being asserted in a complaint?
Third, Google argues in favor of ending forum shopping.
Google claims that almost 25% of all US patent litigation is now filed in a single courthouse. Although unspecified within its statement, Google is likely referring to Judge Albright’s courthouse within the Western District of Texas.
Forum shopping is a veritable concern, not just for patent litigation, but for all litigation. Yet, the chorus of voices from Big Tech lamenting “forum shopping” is difficult to take seriously. Big Tech has aggressively lobbied to diminish the value of patents and label anyone who has the audacity to assert patent rights as a “patent troll”—including individual inventors and Universities. They trumpeted a false and discredited narrative that patent trolls are costing the economy billions of dollars each year. Because they have such a loud trumpet, and because patents remain a fundamentally esoteric and misunderstood piece of property, many people bought into their story.
In fact, many courts have bought in as well. During the Cuozzo Speed Technologies Supreme Court hearing (at 14),Justice Breyer essentially parroted the questionable position that the real purpose of IPRs is to take patents away from patent trolls. In a recent Federal Circuit decision, Judge Mayer essentially argued that the real purpose of Alice is to fight against “notoriously time-consuming and costly” patent litigation and act as an “expeditious tool for weeding out patents clearly lacking any inventive concept.” This from the only Circuit Court in the country to hear patent appeals.
There is also evidence of district court judges who have admitted they hate patent cases. A recent article from the William & Mary Law Review quotes Judge Patti Saris of the District of Massachusetts: “A lot of my colleagues hate patent cases. Hate them.” (emphasis in original). The law review article cites to other evidence of Judges who claim to dislike patent cases. (See n.83).
I have witnessed first-hand the bias that courts have against patent plaintiffs. In one case, I attended an initial conference in an NPE patent dispute in one of the most respected U.S. district courts in the country. When the hearing began, before anyone had said anything, before anything had even happened in the case, the Judge turned to the plaintiff and said, “You are a patent troll.” It was not a question.
Forum shopping goes both ways. Defendants seek out transfer to districts that embrace their disdain of patent cases, and are therefore willing to look for a quick exit—hence the proliferation of Alice dismissals after the Supreme Court’s decision, even though that decision didn’t fundamentally change the prior prevailing standard. Given this climate, it is not difficult to see why plaintiffs look for districts where they believe they will get a fair shake.
There is another facet to this that was recently revealed in Intel’s antitrust gambit against Fortress. Intel’s narrative in that case relied upon this presumption that NPE patents come from one place whereas competitor-patent litigation patents come from another place. Google’s policy statement hints at the same thing.
Yet, the patents come from the same place. Intel’s own complaint identified a list of large technology companies from where Fortressed sourced the patents, including, NXP, Philips, Huawek, Panasonic, Nokia, among others. RPX previously reported that most NPE patents are sourced from large technology companies that want to monetize their patents, and are not averse to farming out that service.
Put another way, Google’s policy statement—like many of these policy statements—conveniently overlooks the fact that NPE patent litigation exists because there are scores of large technology companies that want it to exist and pay for it to exist. Address the issue, not the symptom.
Fourth, and finally, Google calls for “restoring Inter Partes review.”
Google laments that the Patent Office has changed the rules to weaken IPRs.
Although Google’s statement does not specify which rules these happen to be, it is presumably referring to the body of Finitv denials. Under this doctrine, the PTAB has declined to institute IPRs not on meritorious grounds, but because a parallel district court is scheduled to decide the validity of the same patent within a similar time period.
Numerous Big Tech companies, who often act as IPR petitioners, have cried foul over Finitiv’s policy. They claim that the Fintiv doctrine is causing long-term harm not only to our country’s economy, but also to its national security.
Yet, that grievance overlooks so much. Assessing patent validity is one of the only issues across the entire U.S. judicial and administrative system that can literally be heard in front of three different courts at the same exact time. That means, a district court, the PTAB and the ITC could theoretically all be assessing the validity of the same patent at once. There is no requirement that a patent-challenger first exhaust remedies in one forum before proceeding to another.
Even putting aside ITC proceedings, it is not uncommon that a validity challenge is pending before a district court and the PTAB at the same time. There are concrete examples of courts exhibiting frustration over potentially inconsistent rulings—particular, where the district court itself expended considerable resources investigating the validity of a patent.
If the evidence indicates that a district court is going to trial on a validity challenge in the near term, and there’s no indication the district court will stay the case, then why is it not fair for the Patent Office to defer to the district court’s handling of the issue? Companies like Google lament “wasteful litigation” in one breath, but then literally argue for two courts reviewing the same exact issue at the same time, in the next breath.
As other commentators have pointed out, the Big-Tech lament over Fintiv is motivated by its desire to continue efficient infringement. In a recent Supreme Court case, Thryv v. Click-to-Call, Justice Gorsuch observed that the patent at issue in the case had been challenged multiple times, in court, at the Patent Office, over several years.
If you can never quiet title to a piece of property, then that greatly diminishes the value of that property. When it comes to patents, that’s presumably exactly what Google wants. Its recently policy statement calling for patent reform basically says as much.