Canada: Google's "FFF" Patent Plan: Find It, Fight It, And Get It For Free

Last Updated: August 10 2015
Article by Fiona Legere and Marissa Caldwell

Most Read Contributor in Canada, September 2018

Recently, Google has announced two new patent-related initiatives. The first being the overhaul of Google Patents, a search tool of existing patent databases, and the second being the launch of the Google Patent Starter Program, giving away patents for free.

These two initiatives build on Google's effort to impact patent reform in the United States and beyond. Prior to these announcements, Google's efforts included the launch of the Patent Purchase Promotion in April (which we discussed here). Google has not officially released any information on the outcome of the Patent Purchase Promotion but Kurt Brasch, a lawyer at Google, reported that the program was a big success. In a phone interview with Fortune.com Mr. Brasch stated that the company bought numerous patents at purchase prices ranging from $3000 to $250,000.

The new "Google Patents" search tool focuses on the improvement and expansion of prior-art searches. The new tool covers the entire collection of granted patents and published patent applications from the USPTO, EPO, and WIPO. The new version catalogue's non-patent prior art using the same scheme that applies to patents. A machine classification model classifies everything found in Google Scholar using Patent Classification codes. A user can simply enter the relevant type of invention and Google Patents will find prior art across patents, technical journals, scientific books, and more. In addition to the improved search functions, the interface has been simplified and Google Translate has been incorporated to allow users to search foreign language patent documents using English keywords. In the blog post announcing the overhaul, Google cited the negative effect patent troll's have had on business as the main reason better prior-art searches are needed:

The ability to search for the most relevant references–the best prior art–is more important today than ever. Patent filings have steadily increased with 600,000 applications filed and 300,000 patents issued in 2014 alone. At the same time, litigation rates are continuing their dramatic climb, with patent trolls bringing the majority of cases, hitting companies of every size in industries from high-tech to main street.

By making it easier to find prior art, Google's position is that companies will be better armed to combat patents that likely should never have been granted in the first place. Google hopes that this search tool will improve the efficiency of patent examination and stop "bad patents" from being issued.

Google's new Google Patent Starter Program offers eligible start-ups two patents from Google's patent portfolio free of charge. Upon entering the program, Google will identify a group of 3-5 patent families that relate to the company's focus, and the company will then choose the 2 patents they would like to acquire. Google will retain a broad, nonexclusive license to all divested assets. To be eligible, a start-up or developer must have 2014 Revenues between US $500,000 and US $20,000,000. One catch: you must agree never to use the patent to sue a competitor for patent infringement.

In addition, participants will be enrolled in LOT Network's License On Transfer (LOT) program. LOT is a royalty free patent cross licensing arrangement for transferred patents that includes over 325,000 patent assets. When a participating company sells a patent to an organization outside the network they are obliged to attach a condition to the patent that prevents the new owner from asserting that patent against any member of the network.

Participants will also be permitted to search Google's nonorganic patent portfolio for assets that Google may be willing to sell. Access to the portal will be free of charge and Google has stated that they will provide fair valuation on any assets they are willing to divest.

To goal of the program is to alleviate the burden many start-ups experience when dealing with patents for the first time. It will allow them to show investors that their proprietary assets are patented while also protecting them from allegations of infringement from patent trolls. Under the agreement with Google, these patents can only be used defensively.

It remains to be seen if the Patent Starter Program will significantly benefit the participating the start-ups. The patents are limited to defensive purposes, and may not actually deter patent trolls. Start-ups will have access to view Google's patent portfolio but there is no guarantee that additional patents will be sold, let alone be useful. As Jeff John Roberts points out in his article on Google's patent initiatives, the main benefit of the program is to the LOT network:

Google has found a way to add 50 potentially important young companies to the patent non-aggression pact. Their inclusion in the network will ensure that, if the start-ups fail, their intellectual property will be less attractive to patent trolls looking for shakedown weapons. And if they succeed, their executives will be part of a culture that rejects the use of patents as a tool for aggression and ruinous lawsuits.

As discussed in a previous post, are Google's patent initiatives in the public interest or a monopoly on patent rights? Google's actions are expanding its own patent portfolio, even if it is not the goal of the program. Google insists that these initiatives are being done in an effort to improve the patent system for the technology industry and beyond. By taking patents out of the hands of trolls and sharing licenses through programs like the LOT network, Google could lower the number and value of patents. While this is a noble cause, should the reform of the patent system fall to Google or be by a truly independent third party?

While the effects of Google's patent initiatives remain unknown, they do signal the company's, and by extension the technology industry's dissatisfaction with the current patent regime. Google has been one of the most vocal advocates for legislation that addresses the problem of patent trolls and the company seems determined to draw attention to the lack of effective response by the U.S. Government. It will be interesting to see if this issue receives increased attention in the lead up to the 2016 Presidential Election.

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