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U.S. court of appeals hands Google a patent setback

Google's browser toolbar is back in court on patent infringement charges, after a U.S. court of appeals overturned part of a lower court decision.  Google's AdSense contextual advertising service, though, is in the clear.

InfoWorld

Context & Ripple Effects

Google's dispute with Hyperphrase Technologies has been running through the courts, and on December 27, 2007 a federal appeals court rejected part of a summary judgment that had favored Google, as The Register reported the same day. The practical effect is a split verdict: the browser toolbar heads back to district court on infringement charges, while the far larger prize — AdSense — is cleared.

The asymmetry matters because of what each product represents. The toolbar is a small distribution asset; AdSense is the contextual-advertising engine behind much of Google's revenue, so the appellate panel's clearance there removes the scenario where a single patent holder threatens the core ad business.

First-order effects

  • Google must take the toolbar claims to trial rather than escaping on summary judgment, adding litigation cost and uncertainty around a client-side product it distributes broadly.
  • Hyperphrase gains a revived claim and leverage in settlement talks, having survived the stage where most patent cases against large defendants die.

Second-order effects

  • Other holders of software patents covering browser add-ons and toolbars get a roadmap: the appellate reasoning shows client-distributed code can be attacked separately from server-side services, which stayed protected here.
  • Rivals shipping their own toolbars and desktop utilities — a crowded category in 2007 — face the same exposure and may weigh feature removal or licensing rather than litigating each claim.

Third-order effects

  • If the pattern holds, software patent assertion splits web companies' products into defensible server services and vulnerable client software, pushing feature design toward the server side where summary judgment is easier to win.

The trend: Mid-2000s software patent holders are increasingly targeting the client-side products of major web companies, forcing courtroom-by-courtroom tests of where infringement liability actually lands.