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Google's Patents At Risk?

A provocatively titled post at the Patently-O blog, The Death of Google's Patents, by John F. Duffy, suggests that the U.S. Patent & Trademark Office's narrowing view of patentable innovation may invalidate some of Google's patents, not to mention patents held by IBM, Microsoft, and other companies with software patents.

Duffy argues that under the PTO's new rules, Google will lose its famous PageRank patent. And he claims this will harm innovation throughout the technology industry.

"The apparent death of Google's pioneering PageRank patent under the PTO's new rule for patentable subject matter may be a cause for celebration among those who are philosophically opposed to property rights in innovation and are eager to confine the patent system's ambit," Duffy writes. "It will surely be cause for mourning among those who believe that allowing patents on cutting-edge technologies has served the country well for more than two centuries and that a radical departure from the traditional approach would be unwise."

Setting aside claims by Techdirt's Mike Masnik that Duffy has an undisclosed bias as the author of an amicus brief that argues in support of software patents -- Dennis Crouch, the law professor who maintains Patently-O, said in an e-mail that Duffy's views and history have been disclosed in previous posts and aren't issues of concern -- Duffy's worries about the death of Google's patents are overblown.

Google tends to be the defendant in patent cases. If software patents become less common or disappear, Google will probably spend less time in court and less money on attorney's fees. And as CEO Eric Schmidt suggested on the company’s recent earnings conference call, Google's legal fees are not insubstantial these days.

Google's technological lead these days isn't so much a matter of PageRank as it is the company's combination of PageRank and hundreds of other factors that go into its search and advertising algorithms. It's also the company's technical infrastructure and ad client base, the company's developer community, and its engineers. It's much more than a few patents.

As for Duffy's contention that the demise of software patents will harm innovation, just look at the creative ferment in the open source community, which seems to get along fine without patents. Indeed, Google's decision last year to join the Open Invention Network, which helps protect open-source developers from patent claims, shows that the company isn't betting its future on patents.

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