WhyDom

The surprising Verizon v Vonage patent order already seems like old news. 

Most VoIP pundits and VoIP businesses are sitting on the sidelines like England and France did before World War II hoping and smiling and not believing that an aggressor was on the offensive and would soon occupy and destroy most of Europe.   (”Peace for our time.” Neville Chamberlain, 1938)

VoIP service providers and equipment vendors believe, in general, that the process of transmitting VoIP calls to the PSTN was an “open source” telecom methodology.  The recent Verizon v Vonage (see the Feb 12, 2007 Order) case has highlighted the pitfalls of this head-in-the-sand thinking.  The decision underscored the need for VoIP business to get their ducks lined up early in preparation to fight overly broad patents that may have been approved without enough due diligence by the Patent Office. The thinking that telecom processes are generally open-source comes from the telecom industry’s way of doing business.  For example, where is the patent that covers the process of describing the methodology of connecting a DS1 line to a DLC (Digital Loop Carrier) and converting the DS1 signal to POTS voice lines?   There are patents for the telecom equipment, but not for the process of connecting the T1 to the DLC for the conversion. This process is basic “open source” telecommmunications engineering.   

VoIP is not new.  One of the main patents involved in the Verizon case was filed in 2000.  But according to one BBN alumnus, VoIP was being experimented with at BBN as early as the 1980’s.   U.S. Patent No. 6,282,574 was filed on February 24, 2000, two months before Dialpad.com released as a service VoIP calls that were terminated to the PSTN. Do you think DialPad.com “invented” the concept the same time it rolled it out?  Not likely.  Patent ‘574 is broad and, if not invalidated – which it should be – seems to cover every provider in the business of delivering VoIP calls to the PSTN.  

Any time a patent is enforced in court, both parties are rolling the dice.  More often than not, the patent descision makers, in this case Judge Claude Hilton, have little experience in the particular field or industry over which they are make momentous decisions.  In the case of Vonage, and the VoIP industry as a whole, Judge Hilton turned their world upside down.   (Although as a footnote, Judge Hilton was appointed by President Reagan in 1985 and then in 2000 appointed by Chief Justice Rehnquist as a judge on the special Foreign Intelligence Surveillance Court.  The FISC has provided oversight for the Executive Branch’s wiretapping requests directed to large telecommunications companies.  So Judge Hilton is familar with large telecommunications companies from his time on the bench at FISC.)  Too much experience in the industry by a judge is even a good reason for recusal. 

Judicial decision makers also do not know the prior art of the industry. Most significantly for this case, not exploring the prior art leads to a poor decision, one that has a high likelihood of being overturned.  Who “invented” the idea first is the whole concept behind patent law and filing dates.  Just look to Alexander Graham Bell.  The VoIP business leaders need to get together and accumulate and document the VoIP prior art in order that the VoIP industry can proceed forward with confidence.