IP Democracy: Pulver Questions Verizon's Patent Validity

Vonage is going down the tubes in large part because Verizon has crippled the company through a deadly patent litigation lawsuit that centers on key VoIP patents. Fears abound that, bolstered by its big victory, Verizon will lob infringement lawsuits against other independent VoIP providers, and even cable operators, knocking down competitors one-by-one until no rivals are left standing.

But will the validity of Verizon’s patents withstand the inevitable backlash? Already one VoIP pioneer, Jeff Pulver, is questioning one key patent that Verizon wielded in its fight against Vonage. Verizon claims to hold the patent on the general process of “name translation,” which enables callers to make phone calls over the Internet without having to enter the specific IP address of the destination devices.

The problem for Verizon is that Pulver’s Free World Dial-Up (FWD), the first company to complete an Internet to public switched telephone network call, used a process way back in October 1995 which sounds exactly like the patented process outlined in Verizon’s patent application. Pulver even published the details of this process in his “Internet Telephone Toolkit” book in January 2006, two months before Verizon filed for its patent.

Verizon, in its application, doesn’t seem to have mentioned Pulver’s process. The US Patent and Trademark Office (USPTO) trademark examiner apparently didn’t search hard enough for “prior art,” or a preceding invention, otherwise the discovery of FWD’s process may have scuttled the telco’s patent.

Part of the problem is that the USPTO is so overburdened, and lacks the resources to hire enough technical experts, that prior art searches are, in a word, a joke. That’s part of the reason why Congress is perpetually trying to reform the patent system, a tough task given the arcane nature of the patent system and the enormous economic windfalls at risk with true reform.

The latest effort is the bi-partisan Patent Reform Act of 2007, which, if it were law in 1995, might have thwarted Verizon’s patent award at the outset. The bill allows for interested third parties to submit their own “prior art” when a patent application is submitted, providing tremendous research assistance to the overworked patent examiners.

The bill also allows for a new post patent-grant review, available at any time during the life of a patent, that makes it easier for parties to challenge the validity of patents. Existing law basically gives people like Pulver two options — a request for reexamination by the USPTO, which hasn’t worked well, or litigation, which is time-consuming, expensive and difficult.

But, the Patent Reform Act of 2007 is just draft legislation and until that law, or one like it, gets passed, it seems that Pulver’s best bet for invalidating Verizon’s patents is to sue. (Pulver, btw, wants the process to be in the public domain so that everybody can use it.) I suspect a group of independent VoIP providers, not to mention cable operators, would chip in to help foot the legal bills to wrest this patent out of Verizon’s hands.

Posted by Cynthia Brumfield on April 23, 2007 8:19 AM to IP Democracy