As you will recall, Overture sued Google back in 2002 for allegedly infringing its patented ad matching technology. This suit has been pretty quiet for a while, but internetnews.com’s Susan Kuchinskas has a good piece on where the suit stands and the key issues apparently informing it. Particularly interesting is this passage:
As Google’s IPO approaches, the rivals are waiting for a critical ruling by Judge Jeffrey White of the U.S. District Court for the Northern District of California. His so-called Markman order will define key words in the patent, drawing lines of battle.
“[A] Markman ruling defines the terms in the claim, which in turn define the scope of the invention, how broad or how narrow it is,” said Lee Bromberg, an intellectual property attorney with Bromberg & Sunstein. “It’s customary for each side to try to pick out certain important terms and to argue for their view of how they ought to be defined,” he continued. “It’s the judge’s job to decide what those terms mean. Sometimes the judge can define a term in a way that either establishes infringement or makes it impossible for infringement.”
In this case, the Markman hearing focused on two key terms: “database” and “search result list.”
According to its legal briefs, Overture wants to define “database” as “a collection of related data, organized in such a way that its contents can be accessed, managed, and updated by a computer.” Google has a counter-argument for that, but it asked the court to hide its argument from the public, citing trade secrets.
As far as what a “search result list” consists of, Overture claims that search result lists can include banner ads. This interpretation would draw AdWords into infringement territory.
Google argued that a search result list is an ordered series of entries and “inherently excludes banner ads and other items that are not responsive to the searcher’s search.”
The judge must decide whether AdWords are more like banner ads or more like search results, since they are delivered in response to the searcher’s search.
It’s interesting that Google wants to define “search result list” to “inherently exclude banner ads and other items that are not responsive to the searcher’s search.” It’s philosophically consistent with the company’s long standing claim that search results must be independent of editorial or organic results. Yahoo, on the other hand, has long taken the stance that the two can and should be intermingled.
While it’s true that a searcher is not looking for specific ads when typing in a request, it’s also true that the ads are directly responsive to a searcher’s request. It’s all in how the judge defines it. And upon the definitive head of these pins, billions of market value may well dance.