Vonage’s “Workaround”

Bloomberg is reporting that Vonage is working on a “workaround” for its patent infringement. I put “workaround” in scare quotes because, as I wrote last year about the NTP-RIM battle, the problem in these kinds of cases is that no one has the foggiest idea what the patents cover. So when a judge rules that your current product infringes some patent, you respond by re-configuring aspects of your product at random in the hopes that you can convince the judge that the new configuration does not infringe your adversary’s “technology.”

Now, I should acknowledge that I haven’t been able to get my hands on either Verizon’s complaint or the judge’s ruling. But according to this ZDNet post from a few weeks back, the key claim is this one:

26. A method comprising:

receiving a name translation request at a server coupled to a public packet data network;

translating a name included in the request into a destination telephone number associated with a name included in the request; and

transmitting a reply containing both the destination telephone number and a packet data network address of a telephone gateway coupled between the public packet data network and a telephone network through the public packet data network to a calling device.

27. A method as in claim 26, wherein the address is an Internet Protocol address.

It seems to me that if you’ve got a product whose primary purpose is to transmit voice data between a phone network and a data network, that it’s going to have to employ the “method” of “translating a name included in the request into a destination telephone number associated with a name included in the request” somewhere in the software. Because one end of the call is going to be associated with an IP address, and the other end of the call is going to be associated with a phone number, and you’re going to have to convert the one into the other every time you want to exchange data back and forth.

But even if it’s logically impossible to transmit data from one network to another without a facility for converting between their addressing schemes, that doesn’t mean you can’t write your software in such a way as to obfuscate this fact. Which, I suspect (although it’s hard to know without seeing the judge’s ruling and the details of the “workaround,” neither of which appear to be public knowledge at this point) is what they’re doing. The judge might be fooled, and even if he’s not entirely fooled, it might buy a few more precious months for the judge to go through the process of figuring out that it’s still infringing. And Vonage can spend those few months looking for prior art and making their case in the court of public opinion.

I think one of the reasons our patent system is so screwed up is that journalists don’t seem to think about these kinds of difficulties. They dutifully report that Vonage has a “workaround” that avoids “using” Verizon’s “technology,” as though those words have precise, technical meanings. When in fact, determining whether a product infringes a patent in the software industry is about as scientific as reading tea leaves. The main difference is that, you usually don’t have to pay $600 million when you mis-read tea leaves.

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