If someone stole your shiny new car, you wouldn’t wait until the 86th time you saw someone driving it around town to call the police.
In filing his patent infringement lawsuit against 11 e-commerce companies and Internet giants, Microsoft co-founder Paul Allen staked an ownership claim to functions he says his shop developed a decade ago.
In the years that passed between the issuing of the patents and last week’s lawsuit, the functions Allen claims were his firm’s have become commonplace. You can hardly read or shop online without them.
How fair is that? If these patented inventions really are the basis for essential Internet activities, as Allen claims, surely he noticed years ago.
The oldest of the patents dates to March 2000, the most recent to September 2004. What took so long?
One measure of the ubiquity of the contested technology is the list of defendants, from AOL Inc. and Apple Inc. to Yahoo! Inc. and YouTube.
The list includes innovators such as Google Inc., Facebook Inc., Netflix Inc. and EBay Inc., as well as retailers Office Depot Inc., OfficeMax Inc. and Staples Inc. The wonder is that Allen stopped at 11.
The lawsuit says those companies infringed patents developed by inventors working in the now-defunct Interval Research Corp., which Allen and David Liddle created in 1992.
Interval Research employed over 110 of the world’s leading scientists, physicists, and engineers, and was at the forefront in designing next-generation science and technology, Allen’s lawsuit says. Some 300 patents resulted.
Allen held on to the patents through other companies he owned, most recently Interval Licensing Llc, the plaintiff in the case.
They cover methods to create pop-ups, alerts and displays that direct users to material related to whatever they’re viewing.
The companies that are commenting on the case have denied the claims and pledged to defend themselves.
Look for some to say the patents never should have been awarded because the ideas were too obvious to be protected.
What gets me is the notion that Allen would wait this long to sue. The law sets no time limit, but courts punish those who sit on their patents while others are infringing them.
Costs of waiting
While future plaintiffs wait, evidence gets lost, memories fade and the patented item may go into wider use, making any ultimate verdict or settlement that much larger.
So any unreasonable or inexcusable delay that hurts his accused infringers will diminish Allen’s chances for full recovery. He’ll need a really, really good excuse for having waited.
It wouldn’t do to claim the dog ate a cease-and-desist letter he meant to send out.
The only explanation so far came from his lawyers who told the Wall Street Journal that it took years to sort through his patent portfolio.
But he can’t claim he was just too darn busy with other litigation. Avocent Redmond Corp., a Washington state outfit suing the federal government and Rose Electronics for alleged infringement, trotted out that excuse when it tried to explain away a six-year delay. Ruling in June, the US court of federal claims didn’t buy it.
In Allen’s case, if the judge decides his company was too slow to act and that the defence suffered some harm as a result, the Internet companies probably wouldn’t get an automatic or all-out win, but they’d be a lot better off.
They wouldn’t have to pay for infringements that occurred before the suit was filed. But they could still be held liable for any infringement after the filing of the suit last week, according to case law.
And even getting to that point would take months or years and a mountain of legal fees to hash out.
In the Avocent case, still to be decided is precisely when Avocent knew or should have known about the alleged infringement and whether the defendants suffered due to the delay.
So for Allen, the question remains, why now?
As a multibillionaire who has pledged to give away most of his fortune, he presumably hasn’t gone to court for the money.
Maybe, just maybe, Allen didn’t care so much before but does now, at 57 and diagnosed late last year with non-Hodgkin’s lymphoma, for a second time. Treatment was successful, according to his spokesman.
Still, perhaps he’s thinking of his legacy as one of the most pivotal contributors to Internet technology, which changed the world.
That’s fine by me. Technology loses nothing and gains much when we recognize who set down which part of the foundation of the ever evolving science we now take for granted, compensate accordingly and chase away thieves and copycats.
It’s just that it would have been fairer to other innovators, including companies now named as defendants, if he had thought of that sooner.
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