The Oracle v. Google patent and copyright trial is over, resulting in definitive wins for Google on both fronts. Ars interviewed two Google attorneys—general counsel Kent Walker, and litigation counsel Renny Hwang—asking for their sense of what the case could mean beyond its effects on the companies themselves.
Google GC Kent Walker: "People are treating patents like lottery tickets"
Q: What does the Oracle v. Google case patent show us, more broadly?
The case illustrates the cost when the patent system doesn't work well. It costs millions of dollars to invalidate bad patents. That's money we'd rather spend on great new products for people to use.
Q: For several years now tech companies have been getting hit with a deluge of "patent troll" lawsuits, brought by companies with no business other than litigation. Now we're also seeing a growing number of corporate patent fights, including Oracle v. Google, in the smartphone space. Is there a connection?
They all illustrate that the patent system is not working as well as it could be. There are problems with the quality of the patents being issued, there are problems with the potential for high damages. The patent examination is a one-sided process, without other people in the community weighing in.
When you have a system that has holes that can be exploited, people rush into to try to exploit them. People are treating patents like lottery tickets.
Increasingly, you're seeing patents being bought and sold in the marketplace. Their acquisition of Sun [is an example of that.] In reality, we find many of the patents asserted are being invalidated, either by the patent office or in litigation.
In the company versus company context, there's also an increase in the number of claims being made, in part because there are so many software patents. You've seen the report from RPX that there are over 250,000 patents in the smartphone. There's a lot of opportunity for mischief—problems that create costs for everyone in the system.
Q: A lot of those costs are opaque to consumers. Google's products, after all, remain free to most people, and Google can afford to fight these cases. Does this explosion of patent suits have an effect on consumers?
Findings of potential liability create a tax on the items consumers have. In some cases, companies might be chilled from implementing features when they're not sure if its covered by a patent or not.
In the software context, a lot of the costs have to do with features and functions on phones. It's unclear whether the patents are valid or not, but the argument (by patent-holders) is, you shouldn't be able to do this, that, or the other thing on your phone. In some cases those are truly innovative ideas, in some they are not. Consumers may not be able to do a lot of small things that make their lives better, because they're subject to a patent grant.
Q: Can you give me an example of a smartphone feature that consumers are missing out on or may be missing out on, because of a patent dispute?
Because a lot of this stuff is actually subject to litigation right now—there are some comments I can't make.
Q: Android has been a particular target of patent suits, brought by both "patent trolls" and by competitors. Why is that?
Well, you're seeing a flood of software (patent) litigation, generally.
Any product that becomes popular is subject to patent suits these days, and Android has become popular—we're very pleased about that. We're successful in defending those claims and our partners have been successful in defending their products, for the most part, against claims they've infringed.
Q: What kind of effect does a big case like Oracle v. Google have on operations?
These cases are always expensive. They're disruptive, they take management time, they take the time of engineers who need to prepare and testify. That's not great for anybody.
But a company like Google has the resources to fight dubious patents. When the average patent case is costing $5 million and up, the real cost is to the small companies, the startups.
It's a cost of doing business almost. People are having to bake those costs into their equations. That creates a drag on innovation.
Next: Renny Hwang, the lawyer who did the most legwork on Oracle v. Google, discusses the API-copyright issue.
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