Can big tech overcome its love-hate relationship and destroy patent trolls once and for all?

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There has been a lot of talk in the tech world lately about defensive patent licenses and eliminating patent trolls, but I wouldn’t break out the celebratory champagne just yet. As much as technology companies seem to love the idea of killing patent trolls where they sleep — in a comfy bed of intellectual property acquired with proactive litigation in mind — they don’t yet seem willing to take a real stand. And some actually seem content to keep feeding the trolls the IP morsels they need as sustenance to stick around.

If tech companies were serious about getting rid of patent trolls and spurring innovation, their first steps might be building a unified front and applying their ideals uniformly across their IP efforts. On Friday, for example, Google teamed with BlackBerry, Red Hat and EarthLink to file comments with the Federal Trade Commission about the scourge that is patent-assertion entities — institutions that get the rights to IP from operational entities (i.e., companies that actually sell products versus just sue) and then file lawsuits on their behalf. It’s a meaningful action and it addresses a real problem — Red Hat and Rackspace just emerged victorious after a lawsuit with a patent-assertion entity, in fact — but the backstory is a bit more convoluted.

For starters, a skeptic might argue, Google’s interest (and possibly BlackBerry’s, as well) is primarily about sticking it to Microsoft in mobile. After all, it wasn’t so long ago — May 2012 — that Google filed a complaint with the European Union accusing Microsoft and Nokia of engaging with a known patent-assertion entity, called Mosaid, in order to stifle the growth of the Android operating system in Europe. Before ultimately teaming up to acquire Kodak’s patents out of bankruptcy, Google accused Apple and Microsoft of teaming up to buy them and dump them into a patent-assertion entity.

Ironically, though, the very same FTC to which Google is now petitioning recently said the search giant has been abusing its own standard essential patents in mobile by pursuing injunctions against competitors who sought to license them — namely Apple and Microsoft. And BlackBerry, under its former RIM moniker, was part of an Apple and Microsoft-led consortium that bought Nortel’s IP assets in 2011, much to Google’s chagrin. I suspect these apparent hypocrisies only scratch the surface of what’s going on in mobile and across the IT landscape.

There are obviously some complex legal matters and business relationships at play here, but the solution to stopping patent trolling and other questionable practices is for a unified front. There’s plenty of blame to go around among Microsoft, Google and their peers, but placing blame is counterproductive.

Large companies have a lot of money and can effect a lot of change if they use it to fight for things in which they actually believe. If innovation is such a noble cause and the billions in economic damage is really such a problem, then collective and strong action against patent trolls and patent-asserting entities is probably a better solution than talking out of both sides of your mouth about the issue. Maybe they could put those legal resources toward suing the pants off of patent trolls and trying to get their patents deemed invalid, or in defending smaller companies against the high-volume, low-profile IP extortion that keeps patent trolls’ pockets fat.

If it works for Hadoop …

One of the drawings from Google's first MapReduce patent.

A drawing from a Google MapReduce patent.

The types of patent activity we’re seeing shape up in the big data space — around Hadoop, in particular — help serve as an example of what’s possible but also highlight the shortcomings of half-hearted efforts. One piece of good news that got a lot of attention is that Google has pledged not to assert its patents against anyone using techniques covered by its MapReduce patents. This essentially covers anyone using Hadoop because Hadoop is, in part, an open-source implementation of MapReduce.

Another piece of good news — possibly bigger than Google’s move — is that Rackspace, the latest target of patent troll Parallel Iron’s offensive against companies using the Hadoop Distributed File System, has decided to fight back. In an aggressive blog post on Thursday by SVP and General Counsel Alan Schoenbaum, the cloud-computing heavyweight explained its decision to sue Parallel Iron for breach of contract and to seek declaratory judgments that the patents in question do not relate to HDFS.

This is such a big deal because if Rackspace wins, everyone else facing similar claims by Parallel Iron could win, too. In an emailed statement regarding this lawsuit, a Rackspace spokesperson wrote: “We are asking for a declaration of noninfringement because we just don’t see how the patents they have cited just could reasonably apply to HDFS. We believe that other companies will also be able to use similar arguments to fight this troll.” If a court finds Parallel Iron patents unrelated to HDFS, that could serve as strong evidence of noninfringement in the other cases or to preclude the infringement claims altogether.

Further, every big victory against a patent troll means less money in their pockets, which is the only real way to stem the tide of lawsuits. As long as it’s still profitable, they’ll keep coming. Often, though, large companies opt to negotiate and settle with patent trolls rather than deal with the headache of litigation.

Large companies can strike strong blows against the problem by fighting and winning, and by using their bully pulpits to add fuel to a growing fire around patent reform. As Schoenbaum wrote:

Until Congress reforms the patent laws, companies of all sizes and industries could – and likely will – find themselves in the crosshairs of a greedy patent troll looking for a quick cash-grab. No company is immune, and, sadly, small companies can’t afford to fight. If they don’t succumb to the troll’s demands by settling, they face certain ruin.

Our goal with this lawsuit is to highlight the tactics that IP Nav uses to divert hard-earned profits and precious capital from American businesses. This time, the patent troll should pay us.

One has to wonder, however, if Google couldn’t help put an end to this whole question of HDFS patents by pledging non-assertion of its Google File System patents (HDFS is based on GFS) or trying to get Parallel Iron’s patents deemed invalid. Maybe the whole big data industry could be convinced to set competitive concerns aside and put resources behind that effort. (A Google spokesperson said the company is considering how and where to extend its non-assertion pledge but doesn’t have specific details to share right now.)

Whatever they do, though, technology companies need to stop bemoaning patent trolls and promoting innovation on one hand and then suing each other with the other. When they do that, technology companies look as out of touch, or maybe just as full of it, as the media companies that keep crying wolf about piracy without ever taking the fundamental steps necessary to solve it.

Feature image courtesy Shutterstock user Maksim Shmeljov.

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