Dotcom's 2FA patent might be invalid, lawyers say

Legal experts have cast doubt as to whether Kim Dotcom's patent on secure two-factor authentication (2FA) would stand if challenged in court.

Source: Kim Dotcom

University of Canberra law lecturer Bruce Baer Arnold said the onus was on the patent holder to defend the patent through litigation against an entity considered to have infringed on the holder's rights.

"Kim Dotcom's apparent failure to defend his patent in the past would undermine his rights. Australian and US law expects patent holders to act where there is perceived infringement, rather than sitting on their hands.

"Failure to act is one basis for disregarding the grant of a patent," Arnold said.

"An intellectual property lawyer might be asking whether the latest development is about media attention rather than actual legal rights."

Furthermore, the patent itself might not survive a "duel by patent lawyers" where previous publications and prior patents are scrutinised.

"Registration of a patent is essentially a formality. It doesn't mean that the invention is unique and novel; there are lots of patents that wouldn't withstand judicial scrutiny when contested," Arnold said

"A court might conceivably find in favour of Google and other users of 2FA against Kim Dotcom."

Kim Dotcom's 2FA patent was invalidated in the European Union in 2011 following opposition by Ericsson, according to The Guardian. The Swedish telco equipment supplier holds a similar patent from 1994.

Additionally, Dotcom's patent appears not to be unique, with former American telco AT&T holding a key prior patent from 1995, two years before the Mega mogul filed his, according to IPCopy.

Kim Dotcom claimed not to have enforced his patent against a string of alleged infringers because he believes in sharing knowledge and ideas. 

He defended his patent on Twitter, saying his UK patent had been revoked due to a lack of specifics, but his United States 2FA patent was valid.

"My US 2FA patent has no prior art because it specifies mobile phone & SMS," Dotcom claimed.

Dotcom yesterday offered to license his patent to Google, Facebook and Twitter if they helped fund his legal defence against US government allegations of secondary copyright infringement, the cost of which he puts at US$50 million.

He and three associates of defunct file locker site Megaupload await a court hearing in New Zealand, to find out if they will be extradited to the United States to stand trial there.