By Joseph Kamien
A few months ago, Paul Allen’s Interval Licensing LLC filed suit against 11 technology companies, including “Google, Facebook, eBay, Apple, Yahoo Inc., AOL Inc., Netflix, Office Depot Inc., OfficeMax Inc., Staples Inc. and Google’s YouTube subsidiary.” The complaint alleges that these companies have violated four patents owned by Interval Licensing. These patents cover things like displaying information in a browser’s periphery (e.g., stock quotes, email alerts) and recommending a news story to the user when he or she is looking at a similar news story, i.e. things which are commonplace in the web today. The patents were issued to Interval Research Corporation, a company financed by Mr. Allen, who also co-founded Microsoft. Interval received about 300 patents before ultimately discontinuing research.
There has been a lot of speculation about Mr. Allen’s motives for the lawsuit. Some have speculated that it’s about preserving his legacy, the theory being that Mr. Allen wants to establish a public record showing that he was at the forefront of web technology. I think that, given the timing of this suit, his motives are a bit different. Earlier in the summer, the US Supreme Court decided Bilski, 130 S. Ct. 3218 (pdf opinion). The Court, though finding that the “machine-or-transformation” test is not the sole test for patent eligibility, did not really expound on what test would be used in the future to determine patent eligibility. Microsoft, as shown by its amicus brief, wanted a clear rule that “a claimed method must involve one or more disclosed physical things—that is, it must describe a series of steps that use physical means to produce a result or effect in the physical world.” The Court did not really provide any clear rule, but instead reiterated that abstract ideas are not patentable, something that was known before the Bilski decision. It is unclear how this ruling will impact Microsoft’s enormous library of software-related patents, and Microsoft wants clarity. I believe that is the reason for Mr. Allen’s suit. He is hoping that at least one of the 11 defendants will take this case to court and, regardless of who wins or loses, the result will be a clear precedent on the eligibility of software patents.
By the way, the four patents at issue are:
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