Paul Allen's puzzling patent lawsuit

Over the years, Paul Allen has been praised and cursed in his multiple roles as Microsoft billionaire, pro sports magnate, cable boss and philanthropist.

But no one ever called him a "patent troll." Until now.

Maybe that's unfair. The garden-variety patent troll is a company that buys up patents developed by others, then files lawsuits claiming that established companies have infringed the rights of its new portfolio.

By contrast, there's no disputing that the four patents at the heart of the infringement lawsuit Allen, 57, filed last month against 11 Internet and e-commerce companies had been developed in his shop — the legendary Silicon Valley incubator Interval Research, which he personally funded to the tune of a reported $200 million from 1992 to 2002.

The patents cover some online features that are today so deeply embedded in so many websites that many people have trouble imagining that they weren't part of the Web from birth (they weren't, of course). For instance, they include features fundamental to news aggregator sites, which bring snippets of news reports from a variety of sources together on a single page at the user's specification.

Perhaps it's better to say that Allen isn't a patent troll, but on this occasion has dressed up as one.

"This is a patent troll-style lawsuit," Mark A. Lemley, a patent law expert at Stanford law school, told me. And it is likely to have the same effect as conventional patent troll lawsuits: It will cost the defendants millions.

"They'll certainly have to litigate for a while," Lemley said, predicting that it will take a year and a half of lawyer fees even to get to the point where the defendants can ask a court to throw the case out.

Given that aspect of things, and Interval Research's history, the lawsuit has people in Silicon Valley asking two questions: What's gotten into Paul Allen? And how did these patents ever get issued, anyway?

The first question is of lively interest because of who Paul Allen is.

The co-founder of Microsoft, he's been a prominent, if slightly mysterious, figure in the high-tech world and in the Seattle civic community ever since. He's made numerous prominent investments, including a founding stake in DreamWorks, with a fortune currently estimated at about $13 billion.

In the Pacific Northwest, he's known as the owner of the NFL Seahawks, the NBA Trail Blazers, the cable operator Charter Communications and Seattle's Experience Music Project, perhaps best known for its trove of Jimi Hendrix memorabilia.

But his fortune was made in tech, and that has people scratching their heads about why he launched such a high-profile legal attack on the online community. The roster of defendants is a list that manages to be both oddly specific and oddly random.

They include AOL, Apple, Facebook, Yahoo and Google, but not Microsoft. Also on the list are Office Depot, Office Max and Staples, but none of the thousands of other companies that maintain e-commerce websites that operate in very similar if not identical ways.

The 15-page legal complaint filed in Seattle federal court doesn't explain these choices. Its bare-bones character inspired, unsurprisingly, an outbreak of pop psychologizing of the generally uncommunicative Allen.

The lawsuit is all about "building his legacy," a Seattle Times columnist concluded, noting that Allen recently faced down a cancer threat and has pledged to give most of his fortune to charity, making it unlikely that money is the object.

Here's my entry in the Put-Paul-Allen-on-the-Couch sweepstakes: The lawsuit is more about Interval Research's legacy.

Interval hasn't been mentioned much over the last few years. But while it existed it was the talk of Silicon Valley. To run it Allen hired David Liddle, who had been one of the computer science and engineering pioneers at Xerox's Palo Alto Research Center, the fabled PARC.

Liddle assembled an impressively eclectic group — not only the most creative computer scientists and engineers, but artists, writers, videographers, game designers, social theorists. It was evident that they were working on some projects well ahead of the leading edge. But it wasn't entirely clear how far ahead, because the projects were conducted behind a veil of secrecy that was lifted only rarely, as when a writer for Wired magazine was granted a tantalizing look inside in 1999. Allen finally got tired of waiting for Interval's research to generate revenue — a familiar issue in Silicon Valley — and after his attention shifted to industries such as cable, he shut it down.

Departing staff members signed nondisclosure and non-disparagement agreements, which may explain why the inventors whose patents are listed in the lawsuit have not been heard to comment; of the 11 inventors on the four patents I was able to locate (out of 19 individuals), only two responded to my request for comment, one by politely begging off on the phone, the other by referring me to a website updating his latest work and pleading that he's awaiting advice of counsel before saying more.

Officials at Vulcan, Allen's portfolio management company, say it's wrong to over-analyze his motivations for the lawsuit. Allen's staff has been working for years to monetize the more than 300 patents issued to Interval, said Davina Inslee, the firm's intellectual property counsel.

"We've sold some, licensed some, and this is the latest step in the effort," she said, though she acknowledges it's "the most high-profile step." As for why these defendants and not others, "that's just litigation strategy."

That brings us to the issue of what's in these patents, and whether they should have been issued in the first place. They fall into the category of software patents, although for the most part they don't describe software in great detail — they're more like road maps to what software can do.

One filed in 2000 and issued in 2004 describes an idea to alert Web users to "items of current interest." Think Google Alerts, which can send you an e-mail whenever a topic of interest pops up on a website. It says the alert can be implemented "in numerous ways, including as a process, an apparatus, a system, a device, a method," or a computer disk.

It may be tempting to think of an idea like Google Alerts as too obvious to be patentable, but that may not have been the case in 2000, when Interval's inventors set it down on paper. Back then it was more likely an extremely creative idea for making use of the Web's emerging capabilities. But it is evident from the patent application — in this case and the others in the lawsuit portfolio — that anyone attempting to make this idea function in practice still had a lot of work to do.

"If you're speculating about all the things that can ever be developed, then wait until someone comes up with a way to do them, you have such cases," said Vivek Wadhwa, a former entrepreneur and visiting scholar at UC Berkeley's School of Information.

Wadhwa advocates outlawing all software patenting, on the grounds that the real utility of the patented software disappears long before its value as a weapon in litigation. That just puts sand in the gears of innovation, he contends. "Tens of millions of dollars are going to be spent here," he told me, "and the only winners are going to be the patent lawyers."

At this point the defendants' options are unclear. As recently as this summer, the Supreme Court punted on a chance to outlaw software patents. And although the Interval patents were issued at a time when, many patent experts think, the U.S. Patent Office was lacking in analytical skills, they were issued and they stand. If the defendants don't pay Allen off, the next step is up to a judge.

Yet is this the legacy Allen wants to leave for Interval? The organization was once thought of as a worthy successor to research labs such as Bell Labs and PARC. Will it go down in history as nothing more than a name on a lawsuit?

Michael Hiltzik's column appears Sundays and Wednesdays. Reach him at mhiltzik@latimes.com, read past columns at latimes.com/hiltzik, check out facebook.com/hiltzik and follow @latimeshiltzik on Twitter.

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