Google is involved in a lot of litigation at the moment, so much so that contradicting themselves has become an inevitability when reading their positions from one case to another, depending on whether they are the plaintiff or the defendant. As other analysts have already pointed out, this isn’t necessarily news worthy, considering that it is the job of their legal team to represent them in the best light possible depending on the circumstances of the case. The issue becomes a little more interesting when you consider the magnitude of the juxtaposition, particularly concerning their pro-IP/anti-IP stances and their internal policies.
FossPatents, a blog covering software patents and their inevitable lawsuits, has presented a strong comparison sheet showing just how disparate the positions are that Google is taking on a single subject. In fact, it may be the first time that a company has filed strong pro-IP stances along with strong anti-IP stances at the same time in ITC filings.
Inv. no. 337-TA-794
Inv. no. 337-TA-796
Where […] the Commission has found a violation of Section 337, the ordinary presumption in favor of issuance of an exclusion order should apply. In particular, where a party has been unwilling to license […], a rule that would allow it to continue to import infringing products with impunity would undermine […] the statutory mandate of the ITC. It would, in short, allow infringers to cause the exact harm on domestic industry and United States consumers that Congress intended the Commission to prevent. Apple seeks an exclusion order against Samsung, the largest manufacturer of devices running the Android mobile platform. To justify this extraordinary remedy, which would harm consumers and sellers alike in one of this country’s most critical and fastest-growing industries […] The authorized remedies under 19 U.S.C. § 1337 promote the public good by creating appropriate incentives to license intellectual property and preventing the importation of infringing goods from harming domestic markets, and in particular, competitors who have properly invested in developing and licensing valuable intellectual property. […] [T]his Commission should not upset the balance set by Congress and decide that general policy reasons should deprive a patent owner of a remedy for unlawful infringement. That is a decision for Congress to make. The “public interest” exception to the statute has historically been narrowly and rarely applied, reflecting the proper balance between the public’s interest in competition from imported goods and the enforcement of patent rights, which has furthered technological advancement in the nation. In determining whether to issue an exclusion order, the Commission must balance any harm to the public interest against what “would be gained by protecting the patent holder within the context of the U.S. patent laws.” In this investigation, the Commission can and should conclude that an exclusion order would advance no public interest. […] Should the Commission issue an exclusion order under these circumstances, it would reward only Apple’s private interest […] For the foregoing reasons, should the Commission find a violation of section 337 in this investigation, it should exercise its discretion and decline to issue an exclusion order or, in the alternative, allow a grace period of at least six months before issuing the exclusion order. As the Federal Circuit has held, the Commission is therefore in a different position than the district courts, which are required to apply the traditional four-factor [eBay v. MercExchange] test for equitable relief before issuing an injunction[.] Commentators may argue that the Commission should take into account the recent order by the District Court for the Northern District of Illinois (Posner, J., sitting by designation) dismissing a patent action and stating in part that Motorola had not carried its burden of proving a right to injunctive relief […] But as the Federal Circuit held in Spansion, those concerns should not apply here because […] “Congress intended injunctive relief to be the normal remedy for a Section 337 violation and that a showing of irreparable harm is not required to receive such injunctive relief.” “When the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 396-97 (2006) (Kennedy, J., concurring). […] This is just such a case: the patents underlying the requested exclusion order do not represent major innovations and do not drive consumer demand. If an implementer of standards is not willing to pay license fees like its competitors, it should not be heard to complain when it faces exclusion orders for its unlawful importation of infringing devices. Indeed, to hold otherwise harms the lawful competitors who do pay license fees. Competition is served by barring unlawful infringement where others in the market are competing legally. Although an exclusion order would help Apple’s private interest by eliminating its biggest competitor, it would greatly harm the public interest by significantly reducing consumer choice in smartphones, and by likely causing a significant smartphone shortage. […] In short, since […] the smartphone market has become increasingly marked by “few suppliers and limited availability of products to U.S. consumers,” […] it can ill afford an order excluding Samsung’s Android devices.
If you recall, Google rather recently made a massive purchase of Motorola Mobility, a $12.5 billion dollar acquisition. Almost immediately following the purchase, Google began entering into lawsuits with Apple via Motorola, and using their new subsidiary to present positions that are opposed to Google’s own internal policies. These contradicting opinions were even sent to Apple on Google letterhead. Google is also using the same legal teams to represent both cases, and head legal representative Catherine Lacavera has personally represented Google and Motorola Mobility in court in Munich, Germany.
One that jumps out for review is the third row from the top, regarding patent importance. In the Samsung case, Google is stating that patent infringement is of such importance that irreparable harm is not required to receive injunctive relief, or that no matter how small or insignificant the harm may be, it’s important that the company doing the damage should be punished in the favor of the company who holds the patent. However, in the Apple case, Google states that when patents make up a small portion of the companies innovations, then they essentially don’t matter and shouldn’t be treated with any level of importance worthy of a case such as the one they are involved in at the time. Which is it Google?
Although Google is doing nothing illegal by issuing these contradicting statements in court, it does leave a sour taste in one’s mouth to consider how a company with the informal motto “Don’t Be Evil” can justify this style of legal wrangling, though it could easily be stated that the days of that mantra are long gone inside Google. It appears that Google wants to have its cake and eat it too.