Is Google a Patent Troll?

Zachary Silbersher

A recent post on this blog by Gaston Kroub discussed the ongoing patent war between Sonos and Google.  The war started when Sonos accused Google of stealing its technology and infringing its patents.  Since then, the war has broadened to multiple fronts.  In one interesting twist, Google commenced its own suit against Sonos asserting its own patents.  Gaston’s commentary provides some useful insights for why Google would do this from a strategic perspective.  But in this post, we raise another question: is Google a patent troll?

This post is the latest in a series of posts on this topic, including: Is IBM a patent troll?  Is Facebook a patent troll?  Is every individual inventor a patent troll? 

Earlier this year, Sonos sued Google for patent infringement.  The main thrust of Sonos’ lawsuit alleges that Sonos worked with Google to makes Google’s music service compatible with Sonos’ speakers.  To do so, Sonos alleges that it handed over sensitive information regarding its products, only to have Google come out with its own speakers undercutting Sonos.  Sonos now alleges that Google’s speakers infringe Sonos’ patents.  Google not only denies the allegations of infringement, but alleges that it was Google that helped out Sonos, not the other way around. 

Then, in early June 2020, Google made a relatively unprecedented move—it commenced its own suit for patent-infringement against Sonos.  This tactic was a rare move by Google’s own admission.  Google’s complaint states, “While Google rarely sues other companies for patent infringement, it must assert its intellectual property rights here.”  (20-cv-3854, Dkt. 1 (N.D. Cal.)).

Interestingly, two of the patents currently asserted by Google against Sonos are not homegrown Google patents.  Instead, they were acquired from Motorola, most likely as part of Google’s acquisition of Motorola in 2011.  Both of the patents (U.S. Patent Nos. 7,899,187 and 7,065,206) were filed by Motorola long before the acquisition. 

This is an interesting datapoint for the question posed by the title of this blog post. As other commentators have pointed out, asserting patents acquired from others is often deemed to be a hallmark of the alleged “patent troll.” Indeed, another potential hallmark is whether Google is a non-practicing entity with regard to these particular Motorola patents. On the one hand, Google’s complaint against Sonos seeks injunctive relief, which is typically only available for companies practicing the asserted patents. On the other hand, Google’s complaint does not include any allegations that it is practicing those patents. Time will tell.

But that leaves another, perhaps more salient question: why is Google asserting these patents?  Why commence a patent-litigation against Sonos at all?  Presumably, if asked, Google would state, as most companies do, that it respects intellectual property rights.  Sonos has asserted its IP rights, and Google has rightly chose to defend itself against Sonos’ allegations.  Yet, if Google is rightly proven to be an infringer, its respect for intellectual property rights would presumably dictate that Google would compensate for that liability. 

Shouldn’t a respect for intellectual property rights warrant that a defense to asserted rights should be enough?  Apparently not.  While Sonos may be no David, the comparative sizes between Sonos and Google is not negligible.  There is not likely any serious concern at Google that Sonos’ patent-infringement allegations could rise to the level of bet-the-company stakes.  Google can hire the best lawyers and mount the best defense possible. 

So why the countersuit?  The narrative of the “non-practicing entity,” which Google has arguably had a hand in sustaining over the years, has veered so far to one side that it pegs any company or individual asserting a patent as a “patent troll.”  Judges call plaintiffs patent trolls.  Individual inventors, using their own patents, which they designed with their own brains and paid for with their own money, are called patent trolls.  

The reason, as we have blogged about extensively elsewhere, is that Big-Tech wins when patents have less and less value.  And so, the NPE narrative does not thrive on being judicious about selecting who should bear the pejorative of being a patent troll.  Rather, the cottage industries that prop up the “patent troll” narrative for their own existence thrive on being as promiscuous with the ad hominin attack as possible.  So, according to the prevailing narrative, if you have a patent, and you’re asserting it in litigation, you’re probably a patent troll. 

Given that, what about Google?  It admits that it rarely asserts its intellectual property rights.  And yet, it claims that it had to do so in this instance.  Why?  Because a much smaller company, which is not in fact a non-practicing entity, has sued it for patent-infringement, even though Google separately claims that it is not infringing those patents?  Does it maybe make tactical and strategic sense for Google to assert its patents?  Maybe.  Is there any rule or law barring Google from asserting its own patents, or patents acquired from other companies?  No. 

But none of those caveats are typically sufficient to save numerous other purported non-practicing entities from being accused of being trollish.  That has included companies hired to monetizing the patent rights of others who can neither afford the time, money or resources to do so themselves.  That includes individual inventors, who lack the resources to commercialize their own inventions, but nevertheless seek lawful redress from unlawful use of their patents.  That has included Universities seeking to capture licensing revenue from companies using their inventions. 

So, is Google a patent troll?  The definition has become broad and sweeping and divorced from the realities of patent monetization.  And that, apparently, is how lots of anti-patent folks prefer it.