Posts Tagged ‘Google’

Google’s sea-based data center patent highlights the narrow focus of the company’s call for patent reform

Monday, May 4th, 2009

Last week, Google restated its call for patent reform in an editorial published in the Detroit Free Press. The content of the message was not a surprise – clearly playing to the Michigan audience, the company added a “jobs” twist to the familiar rant about litigation costs, dubious claims, and “patent trolls.” The timing of the article was just as predictable – the House Judiciary Committee, chaired by Representative Conyers from Michigan, was set to hold a hearing on its version of the Patent Reform Act of 2009 on the next day.

But something that happened the day before the editorial hit the press is very surprising, perhaps even to Google.

On Tuesday, the Patent and Trademark Office granted US Patent No. 7,525,207 to the company for a Water-Based Data Center.

7525207_fig2

Big deal, right?

That’s what I thought, until a Twitter friend (@elosf) had me looking at claim 1 of the ‘207 patent:

1. A system, comprising:

a computer data center proximate to a body of water comprising a plurality of computing units;

a sea-based electrical generator in electrical connection with the plurality of computing units; and

one or more sea-water cooling units for providing cooling to the plurality of computing units.

Whoa.

Now I’m interested. As a geek in every sense of the word, the subject matter intrigued me. But, as a patent attorney, the breadth of the claim left an impression.

My curiosity led me to Public PAIR, where I learned the following about the ‘207 patent:

  • the patent issued in 26 months (certainly not break-neck speed, but quick nonetheless)
  • the Office allowed the application in the first substantive action (along with a restriction requirement, which was addressed solely by Examiner’s Amendment in the same paper)
  • the applicant made no substantive prosecution comments;
  • the Notice of Allowance includes the following reasons for allowance: “There are inventions in the field that provide similar functionality and/or have similar features, as prior art of record shows. Applicant(s) invention differs from the prior art of record by the combination of its functional features, which include water motion generator, cooling arrangement and computer data center, which in combination are performing as disclosed and claimed, and which the examiner search failed to find.” (emphasis added)

(you can download a .pdf of the patent here, and a .pdf of the entire prosecution history here).

I’m not familiar with either the data center art or the “sea-based electrical generator” art, so I don’t know if that claim is patentable or not. But, in the post-KSR world, it’s incomprehensible that the Office would allow such a claim in a first action on the merits. Basing the allowance on grounds that the claim differs from the prior art by “a combination of…functional features” that, individually, are known in the art only confounds the problem.

Besides the obvious indefiniteness problem (the specification doesn’t mention the claim term “proximate,” making me wonder if land-based data centers with pipes reaching to the sea are covered), a simple Google book search reveals a 1997 publication stating that “the Unisys UYK-43 is the standard US Navy shipboard mainframe” that weighs 1795 lbs “when water-cooled.”

Surely the Office, in applying KSR and the broadest reasonable interpretation of the claim language, should have addressed these issues during examination. But, it didn’t and now Google is the proud owner of this incredibly broad patent.

For Google, the timing of this embarrassment of riches couldn’t be worse. The issuance of the ‘207 patent presents a troubling irony – the company was granted a very dubious patent claim the day before it stepped into the pulpit and lectured about “dubious infringement claims” and the need for reform.

It also highlights a fundamental problem with the narrow focus of the company’s (and industry’s) call for patent reform:

By focusing on the “expenses” and “problems” associated with so-called “bad patents,” reformers are abandoning the broader issue of patent quality – which, just a few short years ago, was the driving force behind the current patent reform movement.

Intentional or not, this is a sad development. While the Googles of the world call for patent reforms that devalue all patents in an effort to address the dubious ones in the herd, the Patent Office has been reduced to what Professor Mark Lemley recently termed “an assembly line type of operation.” That the outputs of such an operation are sometimes troubling – as exemplified by the ‘207 patent – should come as no surprise.

Patent reform efforts that continue to focus narrowly on the outputs, such as those called for by Google, will only make the overall system weaker. Patent quality is the basal problem that simply must be addressed.

It’s time we built a Patent Office and a patent examination system that makes everyone – Examiners, attorneys and agents, companies, and even the Office itself – proud. A fully funded Office capable of efficiently and thoroughly examining patent applications would go a long way, I think, to addressing the so-called “bad patents” problem that has Google and others concerned. I suspect the same Office would do a better job of promoting innovation and creating the “jobs” of which Google speaks.

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Two things to keep in mind when Google calls for patent reform

Monday, March 16th, 2009

Google appears set to play a leading role in the latest push for passage of patent reform legislation. The company is a member of the Coalition for Patent Fairness, an IT-heavy patent reform lobbying group, and has publicly called for significant reform on company blogs. This comes as no surprise, of course – the IT industry has been calling for reform for several years and Google is certainly growing into its own as a leader in that industry, in several regards.

Google is a special case, though, and its call for patent reform deserves heightened scrutiny for at least two reasons.

First, Google the company has existed for only ten years

The #1 result for a Google search on “when was Google started” points us to the company’s ‘Milestones‘ page, and the answer: September, 1998. So, at the time of writing this post, the company has been operating for about 10.5 years – a period of time that is significantly shorter than the term of a single United States Patent.

This lack of a lengthy history should not force the company to the sidelines in the reform debate, of course. Indeed, a company new to the game is uniquely positioned to provide valuable insight on the system and its impact on growth and development.

But, the company’s decade-long lifespan should always serve to provide a bit of perspective on any time-based rationales it offers in support of reform. “Trends” and “developments” advanced by the company as indications of a need for reform, such as those mentioned by Michelle Lee, the company’s Head of Patents and Patent Strategy, in her call for reform on the company’s Public Policy Blog, should always be considered against a backdrop of the company’s position on the patent system timeline.

Consider this practical effect of the company’s youth – In contrast to many companies operating in “older” industries, Google has never had to wait for a blocking patent to expire before launching a new product or service – a practice that often results in design around efforts that produce new and valuable innovations.

The company’s title for its call for reform – “Patent reform needed more than ever” – is quite bold in this regard.

Second, Google has prima facie monopoly power for online search in the United States

According to Hitwise, Google “accounted for 71.97 percent of all U.S. searches conducted in the four weeks ending Nov. 29, 2008.” This 72% share represents a 14% year-over-year increase and, more importantly, exceeds the benchmark for having sufficient market power to raise prices unilaterally. The #1 result for a Google book search on ‘antitrust 70% market share’ tells us that “[a] market share in excess of 70% generally establishes a prima facie case of monopoly power.” (citing Spirit Airlines v. Northwest Airlines, 421 F.3d 917, 935-936 (6th Cir. 2005)).

Considering this ‘acceptance rate’ of the Google search engine and brand, it comes as no surprise that the company seeks to weaken the power of individual patents. With prima facie monopoly power, patents provide no potential upside to the company. What can strong patent protection offer to Google, as a patent owner? Nothing more than spikes on the end of a giant club it already owns.

Strong individual patents provide an enormous potential downside for Google, though. An individual inventor or small company wielding a powerful patent on a better mousetrap carries significant risk for the company – an upstart search engine that provides better results might start to chip away at that 70% share; strong patent protection could block any efforts by Google to adopt the new technology that searchers have embraced. Furthermore, as a patent owner, strong patent protection on top of it’s 70% market share – the spikes on the end of the club – might be viewed as unsavory facts should Google’s monopoly power ever be questioned.

While the patent reform debate will continue to benefit from the inclusion of all patent system stakeholders, we should always consider Google’s brief history and market position when assigning weight to the company’s calls for reform.

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Does President Obama side with Google on patent reform? You decide

Tuesday, March 3rd, 2009

Patent reform season is set to kick-off today as many expect to see new reform bills introduced in both the House and Senate. Not surprisingly, the blogosphere is heating up with commentary as the latest round in the great patent reform debate gets underway.

In an effort clearly orchestrated to coordinate with the introduction of the bills, Google published its renewed call for patent reform on the Google Public Policy Blog. In this post, Ms. Michelle Lee, Head of Patents and Patent Strategy, explains that Google supports patent reform efforts primarily because of the IT industry’s now familiar three-plank complaint about the current patent system:

  1. too many patent infringement suits from non-practicing entities (the trolls of years past)
  2. based on patents of suspect validity
  3. that trigger awards for damages that aren’t proportional to the value of the invention at issue

The post reveals nothing new about Google’s position on the issue (or that of the entire IT industry, for that matter). It does, however, end with a bold and interesting tidbit:

“As members of the Coalition for Patent Fairness, we’re optimistic that patent reform faces better odds in 2009 than it has before — not least because President Obama has pledged his support. Passage of patent reform is long overdue”

It’s widely known, of course, that President Obama supports some degree of patent reform. You can read about it on the Technology page from the platform touted by the President during campaign season. What isn’t known, though, is exactly what the President means when he says “patent reform.”

Reading the Lee post, it appears Google would have you believe that he supports their vision for reform – the IT vision for patent reform. He has, after all, “pledged his support.”

The Google post fails to explain that “patent reform” is not now, nor has it ever been, an all-or-nothing proposition. The biotech and pharmaceutical industries, often viewed as “the other side” in the debate, openly support many of the reform measures that have appeared in various reform bills over the years. These industries have lent support to a move to a first-to-file system, a post-grant review system (sans the controversial “second window”), and putting a permanent end to fee diversion. Indeed, it is widely known that pharmaceuticall industry leaders were instrumental in garnering early support for patent reform legislation before the debate was recentered around a late-arriving injunctive relief provision.

So what does President Obama think about “patent reform?” Decide for yourself – here is the entirety of the official Obama views on patent reform, taken from the page linked above:

“Reform the Patent System: A system that produces timely, high-quality patents is essential for global competitiveness in the 21st century. By improving predictability and clarity in our patent system, we will help foster an environment that encourages innovation. Giving the Patent and Trademark Office (PTO) the resources to improve patent quality and opening up the patent process to citizen review will reduce the uncertainty and wasteful litigation that is currently a significant drag on innovation. As president, Barack Obama will ensure that our patent laws protect legitimate rights while not stifling innovation and collaboration.”

Extrapolating a current policy position from a four sentence blurb is difficult and risky, of course, but I think it needs to be done to counter the image of support conjured up by the Google post. To me, it appears the President believes that a reform that opens the “patent process” to citizen review will reduce the wasteful litigation of which Google complains. In that light, any reform effort that puts the litigation cart before the “patent process” horse might not be in line with the President’s original thoughts on the matter. At this point in time, I think that is all that can be said about the President’s views on the matter.

The President’s views on the issue might have changed, of course, and Google may very well know more than I do about his personal beliefs – after all, CEO Eric Schmidt was on the short list for Obama’s newly-created Chief Techology Officer position until he apparently removed himself from consideration. Based on the record before us, though, any suggestion that the President supports one particular vision for reform is premature and, indeed, irresponsible.

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