On Thursday, February 23, 2017, the United States Court of Appeals for the Federal Circuit granted a mandamus petition filed by Google, and ordered a Texas federal court to transfer a patent infringement case to a federal court that covers Silicon Valley, as requested by Google. See In re: Google Inc. This extraordinary remedy was delivered in the form of a non-precedential opinion authored by Chief Judge Prost and joined by Judge Lourie. Despite the Federal Circuit’s designation of the decision as non-precedential, the Court should be prepared for the onslaught of mandamus petitions that will now be filed given that they have shown a willingness to step in and re-weigh transfer factors de novo.
This petition for writ of mandamus arose out of a patent infringement suit brought by Eolas Technologies, Inc. against Google and various other defendants involving U.S. Patent No. 9,195,507. On the day this lawsuit was filed against Google, Eolas also filed two related suits in the same district, accusing various Walmart and Amazon entities of infringement. The Walmart and Amazon entities, like Google, sought transfer to the Northern District of California under 28 U.S.C. § 1404(a) for convenience. Weighing the relevant transfer factors, the district court concluded that the Northern District of California was not clearly a more convenient forum than the Eastern District of Texas.
The field of wearable technology became somewhat “sexy” with the much-anticipated release of Google Glass, a lightweight pair of glasses that incorporates computer elements, sensors and other components, all for $1,500. One goal of this system is to allow media capture of images, video and sound that replicate the Glass wearer’s point of view.
In February 2012, Google filed a patent application to protect a system of capturing pictures through a wearable device by analyzing a user’s gaze. A user looks through the viewfinder, which can detect the field of vision of a user based on the direction of that user’s gaze. This gaze information can be processed to determine the exact field of view for a user, and this data can be used to adjust the image being captured by the device. This patent application, U.S. Patent Application No. 20130222638, just recently received a non-final Office Action on August 12, 2014.
Years hence we may look back to Tuesday, January 14, 2014 as the turning point in the battle against abusive patent litigation. On January 14, New York Attorney General Eric Schneiderman announced the settlement with one of the more notorious patent trolls. See NY Attorney General Settles Investigation into Patent Troll. This operator, MPHJ Technologies, is the owner of patents dealing with scanning technology and has claimed that thousands of small businesses infringe its patents. MPHJ has been one of the entities used by those in the anti-patent community as an example of a patent system run amok. At the end of the day, at least for those who carefully pay attention and look at the facts, this is not a story about the patent system in any way, shape or form. It is a story about a bully that engaged in reprehensible pre-litigation scare tactics.
Unfortunately, in his announcement of the settlement, Attorney General Schneiderman went too far in condemning legal patent activities in the name of defining what is a patent troll. Schneiderman said:
Patent trolls – sometimes referred to as “patent assertion entities” – are not innovators. They buy patents owned by others and then try to turn a profit by aggressively pursuing businesses they claim infringe the acquired patents. In virtually all cases, the businesses targeted by patent trolls did not copy other companies’ technology. Instead, patent trolls argue that that independently developed technology or business processes used by the target – and in some cases, everyday business activities – require a license linked to the troll’s patents.
The problem with this definition is that there is nothing illegal or immoral about acquiring patents, there is nothing illegal or immoral about enforcing patents and seeking out licensing agreements, and independent creation has never been a defense to patent infringement. Thus, it is unfortunate that legitimate patent activities that are clearly legal were at least to some extent compared with the deceitful activities of MPHJ.
Over the past several years, Google has pursued the idea of a wearable computer with an optical head-mounted display, known generally as Google Glass. With this in mind, it was not surprising to recently see a patent application publish relating to a wearable computer system. Google Glass is set for full release by Google in 2014 and incorporates computer elements, sensors and other components into a system that can be worn like a pair of glasses. One goal of this system is to allow media capture of images, video and sound that replicate the Glass owner’s individual point of view.
The above referenced patent application — U.S. Patent Application No. 20130222638 — has been filed to protect a system of capturing pictures through a wearable device by analyzing a user’s gaze. A user looks through the viewfinder, which can detect the field of vision of a user based on the direction of that user’s gaze. This gaze information can be processed to determine the exact field of view for a user, and this data can be used to adjust the image being captured by the device.
Two weeks ago Google quietly obtained a patent that might lead you to wonder whether it could revolutionize online ranking systems, making Internet reviews more accurate and meaningful. Of course, this invention was overshadowed by the published Google application titled Optical Display System and Method with Virtual Image Contrast Control, which relates to Google glasses. See U.S. Patent Application No. 20130063486. But Google glasses merely relate to a wearable optical display that resembles a pair of glass lenses resting on a user’s face.
Nevertheless, notwithstanding the cool factor presented by Google glasses, the much cooler and more relevant innovation embodied in U.S. Patent No. 8,396,879 relates to a method of ranking authors and their content in the same framework. I know, far less cool factor, but it could potentially create a completely new ranking system for user comments that helps users distinguish good reviews from bad ones. If Google can pull that off, it would solve so many problems now experienced by companies plagued by hostile, unfair, mean-spirited, damaging reviews. It could also provide a solution for those of us who genuinely want to know what we are going to get or what we might experience.