IP Lawyer Evaluates Reframe Its Case

When eWEEK asked Google about Reframe It's complaints, a Google spokesperson told eWEEK via e-mail:

"We've worked hard to build an easy-to-use product that addresses users' demand to contribute to the web and that ranks Sidewiki entries by quality to ensure users only see useful and informative entries. The variety of existing products in this space and the increasing number of sites that enable user generated content shows that there is growing demand for allowing users to contribute to the Web. We are very excited by users' response to Sidewiki and will continue to use their feedback to iterate more on the product."

This all sounds juicy, but what does it prove? More importantly, could something be proved in a court of law, which is where this standoff appears to be headed?

eWEEK asked Edward J. Naughton, an IP (intellectual property) attorney and partner at Brown Rudnick in Boston, to share his thoughts. Naughton told eWEEK Reframe It would have to have patents on its IP-for example, on comments in the margins of a Web page-or at the least technology copyrights to make a case in court. 

Fishkin has said Reframe It has a utility patent pending and other IP that is patent pending, as well as copyrights on the code, interface and the look and feel of the technology.

Naughton said, "A pending patent is helpful. They can't sue for infringement until the patent issues. When a patent application is still pending, however, they can amend the patent to add claims (if needed) to cover exactly what Google is doing."

Naughton added that the copyright claims provide some protection, not for the idea of marginal-commenting software, but for the specific way that idea is expressed and implemented. And if a close analysis of the code reveals significant similarities, that could make the copyright claim stronger, he said, adding, "In terms of functionality and purpose, it's very clear that there is a knockoff. The question is: Is it an impermissible knockoff?"

For its defense, Google would likely argue that it is has implemented and expressed the Web annotation idea differently, from color to layout. Google would also likely note that its ranking technology, and other characteristics under the hood, are unique in the industry. Google could point out the differences between the Sidewiki source code and the Reframe It source code as evidence that the applications are markedly different.

Google would further point out that several Web annotation startups have come to the market with comparable technologies, from Third Voice in 1999 to more recent offerings from Diigo, Trailfire and Fleck.

Moreover, Google CEO Larry Page has been talking about creating annotation services for several years. PageRank, in fact, was originally intended as a way to rank annotations.

Fishkin said he really doesn't want to sue Google because his company is about to release a major new rollout-Reframe It 2.0-and he and his team of 14 people don't need the distraction.

Fishkin said he also hasn't approached Google about this yet. By going public, Fishkin is hoping to get his story out there and see what happens next.