Google Settles Patent Lawsuit From Klausner So It Can Launch Google Voice

from the funny-how-that-works... dept

I was a bit disappointed earlier this week to see that Google had settled a patent infringement lawsuit filed against it by Judah Klausner. Klausner has been going around for years and years suing tons of companies, claiming that any sort of "visual voicemail" offering violates his patent. He's been quite successful getting big companies to settle, which suggests he probably sets his demands at a point just slightly cheaper than it would cost to fight him. It's difficult to see why the concept is even remotely patentable. I remember talking to people about similar ideas for ages. All it basically does is apply an email interface to voicemail. That's not anything special, and hardly "nonobvious to those skilled in the art."

But companies keep settling -- and it's obvious now why Google did so. Just days after the settlement, Google has announced its new Google Voice offering which (wouldn't you know it?) includes a visual voicemail component. These days, it seems like paying off patent hoarders even for ideas that plenty of folks came up with on their own, is just a "cost of doing business."


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Mar 12th, 2009 @ 6:32pm

    Since the patents were originally filed as applications in early '92 (for work that quite obviously preceded the filing of the applications), and since obviousness is determined at the time the invention was made (at least as early as '92), I find it nothing short of remarkable that in 2009 you are able to definitively state an invention made in '92 in a technological area within which you are not one of ordinary skill in the art is "not anything special, and hardly 'nonobvious'".

    While you may find it a stretch, it is not beyond the realm of possibility that these settlements you decry were entered into by these companies because, perhaps, Mr. Klausner really did invent something.

     

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  2.  
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    Anonymous Coward, Mar 12th, 2009 @ 6:52pm

    Visual voicemail is a product I will not be using.
    I suppose that others will be enthralled by the new shiney thing. Looks like Google has money to spare.

     

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  3.  
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    bigpicture, Mar 12th, 2009 @ 6:55pm

    Re: Nothing is obvious to the stupid???

    To take a horse carriage and replace the horse with another form of power unit such as an engine and transmission and call it an automobile, not obvious at all right??? To take ages old paper systems and turn them into a mimicking electronic systems, not obvious at all??? This is just "voice to text" transforming one thing to another like in kind, nature does it all the time but not moronically obvious at all, are we going to patent nature now? This is just more RIM crap.

     

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  4.  
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    mike, Mar 12th, 2009 @ 7:07pm

    fuk

    fuck off klausner you fucking nigger loving scumbag bottom feeder.

     

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  5.  
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    Anonymous Coward, Mar 12th, 2009 @ 7:40pm

    Regardless of what I comment on this site (always polite), or how I talk about these issues AFK (slightly less polite), the voice running through my head when reading these articles is pretty much the same as fake mike's response, sans nigger.

     

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  6.  
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    ChurchHatesTucker (profile), Mar 12th, 2009 @ 7:43pm

    Computer!

    Oh, C'mon! This stuff was "invented" by SF authors long before this patent was issued. Obviously, Asimov & Co. should get a share...

    What I don't get is why companies like google, that have armies of lawyers, routinely back down on this stuff. You'd think that they'd be fighting back, with some kind of long-term view of what this stuff costs over the long haul. But they always settle. Why? Is it just to avoid blazing the trail for the next company?

     

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  7.  
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    Karl, Mar 12th, 2009 @ 8:36pm

    I cant wait till Mike invents something, and someone tries to rip you off. Will you file a suit against them or follow your words here?

     

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  8.  
    identicon
    Willton, Mar 12th, 2009 @ 10:50pm

    Re:

    Since the patents were originally filed as applications in early '92 (for work that quite obviously preceded the filing of the applications), and since obviousness is determined at the time the invention was made (at least as early as '92), I find it nothing short of remarkable that in 2009 you are able to definitively state an invention made in '92 in a technological area within which you are not one of ordinary skill in the art is "not anything special, and hardly 'nonobvious'".

    Indeed. If Mike can say that visual voicemail was "not anything special, and hardly 'nonobvious'" in 1992, then surely he should be able point to some evidence that says so. Methinks that he can't, and instead he just had a visceral reaction to this story without doing an adequate job of fact checking or reasoned thinking. Mike never seems to want to give patentees their due for their inventions.

     

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  9.  
    identicon
    Willton, Mar 12th, 2009 @ 11:01pm

    Re: Re: Nothing is obvious to the stupid???

    To take a horse carriage and replace the horse with another form of power unit such as an engine and transmission and call it an automobile, not obvious at all right??? To take ages old paper systems and turn them into a mimicking electronic systems, not obvious at all??? This is just "voice to text" transforming one thing to another like in kind, nature does it all the time but not moronically obvious at all, are we going to patent nature now? This is just more RIM crap.

    Ironically, bigpicture does not see the big picture. As AC noted, this patent has a priority date back in 1992. If you can show us how it would be truly obvious to one skilled in the art in 1992 or earlier to create this technology, then maybe you have a point. Otherwise this is just an emotionally charged, slippery-slope argument that lacks a basis in reason.

     

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  10.  
    identicon
    Willton, Mar 12th, 2009 @ 11:03pm

    Re: Computer!

    What I don't get is why companies like google, that have armies of lawyers, routinely back down on this stuff. You'd think that they'd be fighting back, with some kind of long-term view of what this stuff costs over the long haul. But they always settle. Why? Is it just to avoid blazing the trail for the next company?

    Perhaps Google settled for the same reason many people settle: because Google did not think it could win in court.

     

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  11.  
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    Mike (profile), Mar 13th, 2009 @ 3:09am

    Re:

    I cant wait till Mike invents something, and someone tries to rip you off. Will you file a suit against them or follow your words here?

    We've invented many things here as part of what we do, and even had our lawyers suggest patenting a few of our offerings, but I have refused. Why would I want to lock up our ideas when others can make use of them as well?

     

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  12.  
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    Mike (profile), Mar 13th, 2009 @ 3:12am

    Re: Re:

    ndeed. If Mike can say that visual voicemail was "not anything special, and hardly 'nonobvious'" in 1992, then surely he should be able point to some evidence that says so

    Hmm. I don't understand this at all. Obviousness doesn't require "evidence." That's prior art. Obviousness is a rather straightforward look at whether or not the concept is one that many of those skilled in the art would be able to figure out. And, I remember discussions as far back as '89, on BBS systems where people were talking about creating answering machines (yes, answering machines) that would have an interface more like email. But we didn't think it was anything special. More just like something that was obviously going to happen one day.

     

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  13.  
    identicon
    Willton, Mar 13th, 2009 @ 6:31am

    Re: Re: Re:

    Hmm. I don't understand this at all. Obviousness doesn't require "evidence." That's prior art. Obviousness is a rather straightforward look at whether or not the concept is one that many of those skilled in the art would be able to figure out. And, I remember discussions as far back as '89, on BBS systems where people were talking about creating answering machines (yes, answering machines) that would have an interface more like email. But we didn't think it was anything special. More just like something that was obviously going to happen one day.

    If one is going to claim that something is obvious, one has to have a basis upon which to make that claim. Often times, that requires pointing to prior art that at least discloses a substantial portion of the claimed invention. But you can't just say "it's obvious" and have no foundation upon which to say what is obvious and what is not. Otherwise your standard for obviousness is completely arbitrary.

    As for talking about creating answering machines that have an interface like email, that's not good enough. People talk about creating time machines, but anyone who would claim that an eventual invention of a time machine was obvious to one having ordinary skill in the art is deluded. It is reducing an idea like having answering machines with an interface like email to practice that the system rewards, as that is thing that is the difficult part in most cases.

    Whether you think a certain invention is special is irrelevant. And whether you think that something was obviously going to happen someday is also irrelevant. What matters is whether the invention of a new thing was obvious to one having ordinary skill in the art at the time the invention was made. Predicting that the cure for cancer will someday be found does not make the eventual finding of that cure obvious. What matters is whether an ordinarily skilled practitioner would have created the same thing by using his ordinary skills and the knowlege that's already out there. Your flighty prognostications of what was going to happen someday is no legitimate basis for determining whether something is patentable or not.

     

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  14.  
    identicon
    Anonymous Coward, Mar 13th, 2009 @ 6:32am

    Re: Re: Re:

    Actually, obviousness, as defined by 35 U.S.C. 103, does require evidence. What you are thinking of is whether it would have been within the skill of an ordinary practitioner (a hypothetical POSITA or PHOSITA) to achieve the same device using teaching available in the art at the time; this definition is independent of obviousness.

    Of course the difference between your "talking about creating machines" and actually creating machines is that Klausner provided sufficient teaching to show how such a machine is created and placed that teaching where everyone could reach it as opposed to keeping that teaching in a small group of people who let the proposal for the invention die after their discussion of theory. Had you created such a machine in 1989 and published how to do so in 1989, Klausner would have been out of luck.

     

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  15.  
    identicon
    Anonymous Coward, Mar 13th, 2009 @ 6:35am

    Re: Re: Re: Re:

    I think it is "obvious" that we will travel to other planets routinely some day. However, my conclusion of obviousness does not make actual inventions that accomplish that "obviousness" any less novel. Indeed, my conclusion of "obviousness" is merely an unfulfilled idea, and the actualization of the idea is an invention, which, if sufficiently novel, is worthy of a patent.

     

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  16.  
    identicon
    Anonymous Coward, Mar 13th, 2009 @ 9:29am

    Re: Re: Re: Re: Re: Space Travel

    So, you are planning on submiting a patent describing interplanetary travel?

     

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  17.  
    identicon
    Anonymous Coward, Mar 13th, 2009 @ 10:07am

    Re: Re: Re: Re: Re: Re: Space Travel

    Since I do not have an invention that I could enable to accomplish interplanetary travel, no.

     

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  18.  
    identicon
    Chuck Norris' Enemy (deceased), Mar 13th, 2009 @ 10:08am

    Re:

    2009 - 1992 = 17 years

    He couldn't innovate on his patent for 17 years. Everyone...this is progress in action!

     

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  19.  
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    chris (profile), Mar 13th, 2009 @ 10:22am

    Re: Re:

    2009 - 1992 = 17 years

    He couldn't innovate on his patent for 17 years. Everyone...this is progress in action!


    12 years ago i got a patent for using a computer to act as a telephone using software and hardware to place calls over a large interactive network of similar computer phone devices. with a few more years of research i will have perfected my "compuphone" and be rich!

     

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  20.  
    identicon
    Anonymous Coward, Mar 13th, 2009 @ 10:29am

    Re: Re: Re:

    So that is you spamming the phone system?

     

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  21.  
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    Chuck Norris' Enemy (deceased), Mar 13th, 2009 @ 11:02am

    Re: Re: Re:

    I certainly hope that was sarcasm. Or else you are RIM.

     

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  22.  
    identicon
    Andrew D. Todd, Mar 13th, 2009 @ 11:34am

    Prior Art and Wiliton, #13

    Well, I went into this last year, citing real specific prior art which I had actually used about twenty years ago:

    http://www.techdirt.com/article.php?sid=20080826/2135392104#c52

    The limiting factor was, broadly speaking, the cost of hardware, not the availability of ideas. Of course, I suppose a kid like Wiliton would not have heard of Wordstar, Profinder, PC-SIG, ProComm, BBS's, etc. He probably doesn't know what a parity bit or a stop bit is. They were all before his time-- or, at any rate, before he went to kindergarten.

    Wiliton is real proud of not being a techie, and yet he is so sure that there cannot be prior art.

     

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  23.  
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    Gene Cavanaugh, Mar 13th, 2009 @ 7:53pm

    Patent on Visual Voice

    Right on, Michael. As a patent attorney, I am ashamed of the way the present system is abused.

     

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  24.  
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    Willton, Mar 14th, 2009 @ 9:25am

    Re: Prior Art and Wiliton, #13

    The limiting factor was, broadly speaking, the cost of hardware, not the availability of ideas. Of course, I suppose a kid like Wiliton would not have heard of Wordstar, Profinder, PC-SIG, ProComm, BBS's, etc. He probably doesn't know what a parity bit or a stop bit is. They were all before his time-- or, at any rate, before he went to kindergarten.

    Since I was born in 1981, that very well may be true. What I find interesting, though, is that you are the only one to mention this prior art. Not to say that you are wrong, but why didn't Mike mention this? If this stuff was really out there, why did he go into some silly story about how visual voice mail was "just like something that was obviously going to happen one day?" Or is this stuff that you mention not good enough to publicly disclose the building blocks of visual voice mail? I guess my concern is that if this stuff is really out there, no one appears to be raising it as a defense to infringement.

     

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  25.  
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    Anonymous Coward, Mar 14th, 2009 @ 4:36pm

    Re: Prior Art and Wiliton, #13

    In Wilton's defense, he did not say that there cannot be prior art. Of course there is prior art. There is prior art applicable to every invention for which a patent application is filed.

    What Wilton did say is that virtually all of the commenters who proclaimed that the patents held by Klausner are "obvious" provided not a whit of evidence in support of their proclamations. Clearly, it is one thing to say something is obvious, and quite another to demonstrate something is obvious. This site attracts a lot of the former, but only very, very few of the latter.

     

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  26.  
    identicon
    Andrew D. Todd, Mar 16th, 2009 @ 2:52am

    Prior Art and Wiliton, #13, 24

    Correction: you mean I am the only person on _Techdirt_ to mention this kind of stuff. Every time one of these flakey patents gets featured on Slashdot, lots of people come forward with specific memories. Maybe one Slashdotter in ten thousand knows where the bodies are buried in the case of a particular patent, but, given Slashdot's size, that is enough. However, Slashdot can only subject one patent a day to that kind of concentrated attention, and the patent office issues something like five hundred patents a day. There is not enough collective attention span to subject them all to public examination, criticism, and ridicule.

    I believe Mike Masnick is a rather younger man than I am-- I expect his memory does not go back so far. In 1981, as an engineering student, I was programming an IBM 1130 computer belonging to the University of Cincinnati's engineering school, and learning from people who had been programming computers in the 1950's.

    I have done a certain amount of historical research about computers, mostly focusing on the period from 1940-1980. In round numbers, I have identified something like half a million pages of computer magazines between 1960 and 1980, most of them so badly cataloged that the only way to find out what is in them is to read through the lot.

    Under the circumstances, it is hardly surprising that patent examiners rarely know what has already been done. If patent examiners were adequately trained, they would spend perhaps ten years getting up to speed with the literature before they presumed to examine patents, but of course no such thing happens. Until a couple of years ago, I would have said that the Patent Office was a species of organized crime, knowingly and intentionally issuing false patents for profit. I was somewhat surprised when the Patent Office made a good-faith effort to comply with KSR v. Teleflex, instead of engaging in a prolonged campaign of covert sabotage. The Patent Office went through an organized crime phase in the early nineteenth century, and the Franklin Institute of Philadelphia (the first national engineering society) had to whip it back to legitimacy. It wasn't particularly surprising that the whole business was happening again. I was seriously concerned about the number of engineers who, in the utmost extremity of exasperation, proposed to settle the Patent Office problem with rifles. Fortunately, in the aftermath of KSR v. Teleflex, things seem to have changed, and only certain outliers such as the Federal District Court for East Texas still maintain the "Don Corleone" mentality. If the Patent Office can become efficient at revoking existing software patents under Bilski, that will deprive the East Texas court of standing to hear cases involving these patents.

    From a legal standpoint, most prior art issues about software are moot. Bilski is not strictly a derivative holding of KSR v. Teleflex, but it is a reasonable intellectual development of the Supreme Court's reasoning in respect of the computerization of pre-existing paper processes, applying the same reasoning to mental processes. Given that the Supreme Court ruled unanimously in KSR v. Teleflex, no one who is not whistling past a graveyard really thinks they will overturn Bilski. Of course most patent lawyers are whistling past a graveyard, and so is the Federal District Court for East Texas.

    I would say that someone who is accused of infringing a patent is in fact the subject of a police prosecution. Patent holders use the methods of a police detective to seek out strangers who might be found to be infringing. They seek injunctions and import bans to damage their targets' business without benefit of trial. It is not like a case of business partners falling out, or anything like that. The alleged infringer should be entitled to the presumption of innocence. By that standard, the patent process is ludicrous. It should be for the patentee to prove that the purported invention was original and nonobvious. As I have said, the perfunctory character of a patent examination does not begin to meet that requirement.

    My working definition of obviousness is whether something is within the paradigm or not. For example, Albert Einstein's famous response to Heisenberg and Bohr that "God does not play dice with the universe." is an argument across a paradigm. More than twenty years ago, it was widely accepted that things like sound and video recordings were data, and could in principle be handed in the same way as other data.

    One useful measure of obviousness is the kinds of homework/examination problems one finds in textbooks. One can show that students were expected to attack wide ranges of problems within general areas, and to do it as an ordinary matter of routine, within the space of an hourly exam, with a high probability of success, 70% being a C, or a passing grade. To complete the problems, you are expected to break big composite problems down into small simple problems, and then to identify these sub-problems as special cases of more general problems, which have well-known solutions. To put this in concrete terms, consider a problem from elementary calculus, the integral:

    F(x) = Int[ 9 * x ^ 2 + 12 * x ^ 3]dx

    You are expected to use standard theorems to reduce it to:

    F(x) = 9 * Int[ x ^ 2]dx + 12 * Int[ x ^ 3]dx

    and then to observe that the integrals Int[x^2]dx and Int[x^3]dx are special cases of Int[x^n]dx, for which there is a general solution.

    Int[x ^ n]dx = (x ^ (n+1))/(n+1)

    and therefore:

    F(x)= 3 * x ^ 3 + 3 * x ^ 4

    The same kind of thing applies in a computer systems analysis textbook, or an electronics textbook, or almost any other engineering textbook. You are supposed to take a system and reduce it into conventional components, not to treat it as sui generis. A college course is supposed to teach, not particular solutions, but ways of arriving at solutions. If you had signed up for a freshman course in a technical subject, and attempted to take a pre-KSR v. Teleflex patent examiner's approach, complaining that the teacher had not showed you exactly how to solve that particular problem, you would surely have flunked the course. The teacher would probably have written on your examination paper: "Behold, the New Bartleby!!!!," and would have circulated copies to his colleagues as a comic entertainment.

    I think it is this level of obviousness that Mike Masnick and company are responding to, though I would not undertake to speak for them. Anyone who has had a technical education has been expected to rapidly resolve textbook problems which look very much like combination patents into their elements in double-time, without even getting much of a pat on the head for it. As one commentator remarked, circa 1970, "...grades, or dog yummies, or small fish, or whatever you throw to students these days." These kinds of patents are worth a Milk-Bone, not a twenty-year monopoly.

    In 1981, a man named Joseph Deken published a book entitled _The Electronic Cottage: Everyday Living with your Personal Computer in the 1980's_. It was sufficiently popular that it became a Book-of-the-Month-Club Alternate Selection, before going into paperback. This book is too extensive to be readily summarized, but, inter alia, it sets forth the idea that a computer can have cameras, microphones, motion detectors, chemical analyzers, and other sensors, and treat their outputs as data, that the computer can control various machines, etc., etc. The whole robot, so to speak. I have a whole collection of similar books going back to about 1970, written by various popular-science and science-fiction authors. In the film, _2001: A Space Odyssey (1968)_ the HAL 9000 computer delivers a video mail, which it has been concealing in its databanks, and which is the ultimate cause of the computer's aberrant behavior up to that time.

     

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