Phone.com Inc. fired the first shot against Geoworks’ claim that it holds intellectual property rights to Wireless Application Protocol technology by suing the company.
Geoworks claims its patent concerning a flexible user interface implicates all carriers, vendors and applications developers using WAP technology, while the Phone.com lawsuit contends it both does not infringe on Geoworks’ patent, nor is the patent valid or enforceable.
“This lawsuit seeks to put an end to Geoworks’ repeated and unjustified accusations that virtually the entire wireless Internet industry infringes a Geoworks patent, which is directed to unrelated technology, and its threats to sue entities unwilling to succumb to its demands to take a costly and unnecessary license,” the company said in the lawsuit.
The lawsuit, which Geoworks found out about in a press release, began a heated war of words between the two firms.
“We are surprised and disappointed that Phone.com has chosen this unprofessional course of action,” said Geoworks’ Dave Grannan, president and chief executive officer, in a statement. “We have never accused any company, including Phone.com, of infringing on our patent. We created a very straightforward licensing program and announced it to the WAP Forum in accordance with the forum’s rules, which Phone.com helped establish. Now it would seem that Phone.com has decided these rules no longer apply and is pursuing a lawsuit against us, which we believe violates the spirit of the WAP Forum charter.”
“Had this been a valid patent, we as a member of the WAP Forum would abide by the rules and license it,” Ben Linder, Phone.com vice president of marketing, told RCR. “But it is not a valid patent.”
He cited a legal term called prior art, meaning public information was available in academic papers and existing commercial products that cover the same area as the Geoworks patent claims to hold.
“The patent specification reads as a `primer’ on object-oriented programming, and never mentions markup languages, the Internet or wireless communications,” according to the lawsuit.
Going further, Phone.com said it filed the lawsuit to avoid being sued by Geoworks, accusing the company of being aggressive in its attempts to enforce its license.
“Geoworks’ conduct has, and continues to, put Phone.com under a reasonable and serious apprehension of imminent suit,” the lawsuit read.
“We’ve never said to any company we would litigate. We would prefer not to,” responded Bob Boggard, Geoworks’ public relations manager.
Geoworks sent a letter and white paper detailing its patent claim to all companies in the WAP Forum, and set a July 1 deadline for licensing agreements to be completed before it took any further action.
“To me, mentioning a date by which you have to license is a threat,” said Linder.
Defending the licensing effort, Geoworks said at least it was upfront about its beliefs. Geoworks then attacked Phone.com’s own IPR claim in the WAP forum, accusing Phone.com of holding the threat of possible future licensing over the wireless Internet industry.
“You can implement a licensing program at any time and make it retroactive,” Boggard said. “Phone.com hasn’t come out in any way saying they will or won’t license. To me, that says they’re holding out and are waiting to see what happens. They haven’t indicated one way or another what their intentions are. As a founder of the WAP Forum, we would think they would do that.”
“We declared our IPR in conformance with WAP Forum procedures,” Linder responded. “What we have or have not indicated is not an issue … This is still too early in the stage of the industry to worry about IPR and licensing. As WAP matures, there will be many IPRs and patents. Only when all have been declared can you sit down and have cross licensing. I don’t think it’s clear yet where the IPR process is. It takes years and years. It’s not currently an issue for us.”
About 10 other companies, including Nokia Corp. and NEC Corp., also claim essential IPRs within the WAP Forum. Officially, the WAP Forum is not taking sides on the lawsuit.
“We are not a licensing body, so we don’t take a position in terms of the decisions of individual companies. Our job is to build the specification,” said Scott Goldman, chief executive officer of the WAP Forum. “Both companies followed the process. Geoworks filed an IPR, and when they do, any company who feels it is not fair, reasonable and nondiscriminatory is free to take what action they wish … This is actually a good thing. You have two companies following the process as it was laid out. It’s indicative that the process works. That’s not always obvious looking from the outside in.”
Geoworks’ patent is for a process used in designing a flexible user interface for application programs that enables the same application to run on various different platforms and devices. Geoworks claims it holds essential IPR on that method, which it said is used by both the WAP specification and Wireless Markup Language technology.
In January, Geoworks publicly unveiled a licensing program for all companies employing WAP or WML in any way, demanding $20,000 a year from companies that make more than $1 million a year in revenues from using the technology. Companies with less than $1 million a year in revenues must pay $25 a year, and server software firms are charged $25 a year plus $1 for each subscriber on the server.
The patent claim and licensing program almost immediately was met with indignation by several industry players and sparked speculation it could hinder the progress of WAP. Since then, Geoworks said four companies, the largest being Toshiba Corp., have signed licensing agreements.
Industry insiders don’t think the licensing program or the lawsuit will inhibit WAP innovation or development.
“I certainly don’t see it as a big fight within WAP. We see it as an issue between two companies,” Goldman said. “People will not hold off on products or application development because the market demand is so strong for WAP that no one can afford to hold off and remain competitive.”
“We’re a member of the WAP Forum. There’s no reason we’d want to have WAP derailed. That would hurt us as a company,” said Boggard. “I don’t think people are going to buy a lot of stock in it. They will look at it as a battle between two companies, not a battle over the WAP standard.”
