Did Google announce a Google patent marketplace?

On Monday, Google announced that it will open an “experimental marketplace” for buying and selling patents.  That is an inaccurate description.  While it sounds experimental, and is definitely interesting, it is not a “Google patent marketplace,” let alone a general patent marketplace.  It is a RFP (request for proposals) by Google to acquire patents.

What Is Google’s “Patent Purchase Promotion“?

While the Google announcement was proclaimed by many as a Google patent marketplace (here), a portal (here), or a way to make selling your patents easier (here), or even as Google’s attempt to get first refusal on any sale of your patents (here), it is none of those things.

Instead, Google’s new initiative is an effort to buy patents at a cut rate and on very one-sided terms, by getting sellers to submit their patents and asking prices all at once, so that Google has the opportunity to review and buy whichever it wants.  This is a classic business RFP: an invitation to “tell us what you have and what you’re willing to sell it for.”

Why is this not a Google Patent Marketplace?

This Google creation is not a marketplace, because there is no other buyer; each seller has no information about what else is being offered for sale, or at what price.  Imagine craigslist trying to operate like that!  (Come to think of it, I wonder if craigslist could host craigslistPatents – your source for patent acquisitions! – that could be great, or could be awful…)

Calling this an attempt by Google to have a right of first refusal is also not accurate – that term applies to an existing contractual relationship between parties, where if one wants to sell, he or she must first offer it to the other.  Are you under contract with Google already?  Let’s hope not!  Rather, this is an “invitation to bargain“, in legalese.

What about Patent Trolls?

This may also be an attempt to keep patents away from “patent trolls” (a phrase that should usually be read as “someone trying to protect private property rights”), as Google said and as others repeated (e.g., here).

What is a patent troll?  Anyone suing you!

But Google has been setting records by lobbying hard for patent law “reforms” such as the Innovation Act (an Orwellian misnomer) that would gut patent protection for smaller companies and benefit giant companies, like Google, which often infringe others’ patent rights with impunity (see, e.g., here).

Google’s effort should not be seen as a high-minded attempt to save the world from patent trolls – just as an attempt to acquire patents at a lower cost than by licensing them, or more likely, at a lower cost to Google than infringement lawsuits.

How Will Google’s “Patent Purchase Promotion” Work?

Beginning May 8, and continuing through May 22, patent holders will be able to submit to Google information on the patent or patents they want to sell, and their prices.  Google will have a window of time in which to investigate all offered patents, and choose each one at the offered price.  Note that if you do submit a patent with a price, it looks like Google is setting that up as a binding offer, so don’t submit one if you’re not willing to sell at that price.

Google’s RFP here is on terms that are very favorable to them.  For instance, anything you submit to or communicate to them (including your patents or unpublished patent applications) cannot be used by you “as evidence for any purpose in any judicial, administrative, or other proceeding in which infringement of any of Your patents is alleged.”  In plain English: if you submit something to them, you destroy your ability to prove they are infringing your patent!  More on their terms in a post coming next week.

Do you want to know more?

You can read Google’s announcement here, and details of the “Google patent marketplace” program here, and the terms and conditions quoted above here.  I encourage anyone interested in selling (assigning) patents to Google to read those materials, and contact a patent attorney before submitting anything.  Google is not a charity: it is a sophisticated business.  It is launching this effort to acquire patents at low cost.

Undertaking to do business with Google is a big decision.  While there may be good reasons to assign your patent to them, I welcome the opportunity to discuss your goals with you, and the implications of doing this on Google’s terms, before you submit an offer to sell.  You can reach me through my contact-me form, or at 617-340-9295.