Say what you will about Rackspace as a cloud computing provider and OpenStack steward, but don’t say the company isn’t fighting the good fight against patent trolls. Its latest effort is a challenge to the validity of a patent that an entity called Rotatable Technologies is using to sue, well, just about anyone developing mobile applications that take advantage of a rotating screen display. Yes, the same rotating screen display that’s been a staple of smartphones since the iPhone first graced consumers in 2007.
Rackspace General Counsel Alan Schoenbaum detailed the legal challenge in a blog post on Friday. You can read the details there and in its petition to the United States Patent and Trademark Office, but the gist is that Rotatable sued Rackspace (as well as Apple(s aapl), Netflix(s nflx), Electronic Arts, Target, Whole Foods Market and numerous other large companies) and then told Rackspace it was ready to settle the claim for $75,000, possibly less. Classic troll behavior.
And even though its USPTO challenge will end up costing much more than $75,000, Rackspace decided to stick it to Rotatable and stick up for everyone else who has developed a rotatable mobile app. Some already have been sued and others might be, and all they did was utilize a feature of the operating system their apps run on. It’s the equivalent of suing Microsoft Office users for infringement if you thought Office had infringed your patent.
As Schoenbaum explained during a phone call, this is standard operating procedure in patent troll cases. Because of a legal theory called patent exhaustion, patent holders who sue and lose or settle with and grant a license to upstream defendants (e.g., OS or device manufacturers in this case) can’t then go after downstream users such as Rackspace or Whole Foods. It’s often a lot more effective to shake down lots of those downstream users — be they individuals, small businesses or corporations — for relatively small settlements than it is to target one or two big upstream infringers.
Small businesses, especially, are often “perfectly situated sitting ducks for lawsuits,” Schoenbaum said. However, he added, “[Rotatable] probably shouldn’t have started with us.”
Going on the offensive against trolls
This isn’t the first time a large company has decided to stick it to a patent troll in the name of justice rather than settle, though. Last week, Rackspace decided to sue a troll called Parallel Iron that claimed Rackspace committed patent infringement by using the Hadoop Distributed File System. As part of its lawsuit against Parallel Iron, Rackspace is seeking a declaratory judgment that the patents involved don’t actually relate to Hadoop — a decision that could come in handy for other Parallel Iron defendants such as Facebook, Amazon and Oracle. (IP Nav, an alleged troll associated with Parallel Iron, gives its account of the situation here.)
In 2012, Cisco, Netgear and Motorola joined forces (albeit unsuccessfully in the end) to file a federal racketeering complaint against a patent troll demanding payments from hotels and restaurants for using WiFi.
And, of course, there are some more-defensive attempts to tackle the problem of patent trolls, such as Google’s decision to pledge non-assertion for a number of patents related to its MapReduce technology. That decision essentially freed up anyone to use the processing components (but, obviously, not the storage component) of the Hadoop platform without fear of infringement claims from anybody.
Covering the Rackspace-Parallel Iron news, I suggested more large companies serious about fighting the alleged scourge of patent trolling should do exactly what Rackspace is doing with Rotatable — and it’s possible that might happen. Rackspace is attacking Rotatable thanks to a provision of recent patent reform legislation that lets third parties (like Rackspace in this case, because it’s not claiming any patent ownership) to challenge the validity of a patent based solely on the existence of prior art. Prior art that would refute the novelty of a patent has historically been difficult to track down, but new tools such as Google Patent Search are making it an easier process.
In this case, Schoenbaum told me, the amount of prior art available made it a perfect opportunity to take advantage of the new law.
However, he noted, just because the recent patent reform legislation was a step forward, that doesn’t mean the system is perfect. Patent examiners are still overloaded with applications, and in difficult-to-parse software and business-process patents there’s probably a bias to grant rather than deny. He’d also like to (and is optimistic he will) see Congress take up patent reform once again to give end-users (like mobile developers in this case, or WiFi users in the Cisco case) immunity against patent infringement suits.
Whatever happens in Washington, though, it appears Rackspace will keep on taking the fight to patent trolls. Just like Red Hat before it, new open source champion Rackspace wants to do what it can to defend the open source community, Schoenbaum said. “We want to start a movement.”
Feature image courtesy of Shutterstock user Denys Prykhodov.