Google May Be Liable for Indirect Infringement

ATLANTA (CN) - Google will not have to face claims that it infringed Selex Communications' patented method of making long-distance calls inexpensively over the Internet, but may be liable for indirect infringement enabled by its Gingerbread mobile operating system, a federal judge ruled.

Selex sued Google in 2009, alleging that Google Voice, which allows subscribers to make long-distance calls, infringed Selex's patented method by placing the calls through a remote telephone call origination (RTCO) server. It claimed that Google's Android operating system also infringed the patent by supporting Internet calling.

But Google countered that Selex could not show infringement by Google Voice, because no single entity controlled the process of placing a call through the system. It added that Selex had failed to state a claim aimed at Google's Gingerbread system.

U.S. District Judge Thomas Thrash, Jr. agreed that Selex could not state a claim for joint patent infringement, because it could not prove that Google's end-users controlled every step of the infringed method. "Without pleading 'control or direction,' Selex has not set forth a plausible claim for joint patent infringement," Thrash wrote, noting that the method would be directly infringed only if one party controlled the entire process.

Thrash rejected Selex's argument that cell phone users control Google's actions pursuant to a subscription agreement, finding that Google reserved the right to restrict certain calls placed by subscribers.

As for Google's Gingerbread system, Thrash found that Selex successfully established that Google had acted with specific intent to "induce infringement" of Selex's patent. Selex's second amended complaint stated plausible claims that third parties had directly infringed the patent by using Gingerbread-enabled cell phones, according to the ruling.

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