In response to the whopping great suit that IBM filed against Amazon.com in October, the one that lays claim to God knows how many hundreds of millions in damages for alleged infringing a handful of utterly fundamental e-commerce business methods patents it now holds - like on online advertising and online selling per se - Amazon last week countersued claiming that IBM's multibillion-dollar WebSphere widgetry and its information management services and products have willfully trifled with two of its patents for years.

In denying IBM's allegations, Amazon opened by basically calling IBM, the biggest patent holder in the world, given these day to open sourcing IP and foreswearing the litigious use of its patents, a hypocritical patent troll.

At least four of the five patents IBM is holding over Amazon's head and saying Amazon built its entire business on them weren't "developed at IBM, but rather bought from a now-defunct company for the apparent purpose of threatening other companies with litigation like this to extract licensing payments," Amazon told the court, immediately adding that "IBM's broad allegations of infringement amount to a claim that IBM invented the Internet. If IBM's claims are believed, then not only must Amazon.com pay IBM, but everyone conducting electronic commerce over the World Wide Web (indeed, every web site and potentially everyone who uses a Web browser to surf the web) must pay IBM a toll for the right to do so."

It says IBM has made "significant contributions in certain technology areas," but Internet retailing ain't one of them. "IBM has never been seriously recognized for providing the nimble, fast-paced developments and services needed to offer innovative e-commerce" and now "simply wants to siphon the profits that Amazon.com" earned through its own ingenuity and investment.

According to the story Amazon tells the court, IBM didn't complain about Amazon infringing any patents until Amazon announced its first profitable quarter in 2002, eight years after it was started. And it says that it's been telling IBM ever since that it ain't gonna pay for "patents it does not use, does not need and that do not have any application to its business" - or for that matter aren't valid or enforceable.

It also claims that IBM used "deceptive tactics" to get at least some of the patents it asserts by "concealing prior art from the Patent Office." It says the Patent Office Board of Appeals found articles containing prior art, "chided IBM for its failures and requested additional information," which IBM never supplied. "Instead, IBM fired the patent attorney handling the matter and instructed new counsel to strike the negative comments from the record, which the Board of Appeals refused to do."

Amazon, which does about $10 billion a year now, wants the IBM patents thrown out and since this is "an exceptional case," it wants attorneys' fees for its trouble.

Instead of Amazon infringing IBM patents, Amazon claims IBM and IBM's customers infringe Amazon patent No. 6,169,986 entitled "System and Method for Refining Search Queries" and awarded the beginning of 2001. It also claims IBM infringes Amazon patent No. 5,826,258 entitled "Method and Apparatus for Structuring the Querying and Interpretation of Semi-structured Information," issued in late 1998.

For reasons that are unclear, IBM split up its patents and sued Amazon in two separate Texas district courts using almost identical language in the twin suits. Amazon has moved to get the two suits consolidated "in a single court before one judge for a single trial." It wants the Lufkin Division suit sent over to the Tyler Division, where IBM filed the first of its suits by a few hours.

Amazon thinks IBM filed two suits before two separate judges and juries to get "two bites at the proverbial apple."