Nobody would disagree with the assertion that the patent system in this country is in a state of chaos. Most of the big internet companies and all the major players in the mobile segment are in litigation over patents, either suing or being sued. It’s an incredible waste of time and resources.
Among the big match-ups are Apple vs Samsung-Android and Motorola (now Google by virtue of the acquisition) vs Apple and Microsoft. Last week Chicago-based US District Court Judge Richard Posner simply dismissed a closely watched patent case involving Apple and Motorola.
Each had sued the other and the judge felt both sides were being completely unreasonable in their remedies and damages claims, so he dismissed the entire lawsuit. I haven’t read the Judge’s order and rationale but it’s a safe bet that the dismissal will be appealed.
Meanwhile in San Jose, US District Court Judge Lucy Koh last week granted separate (temporary) injunctions to Apple against the sale of both the 10-inch Samsung Galaxy Tab and the forthcoming Galaxy Nexus mobile handset. Samsung has appealed.
One of the primary reasons Google acquired Motorola Mobility was for its patent portfolio, which includes a wide range of foundational mobile patents. Now Google appears to have bought itself another antitrust investigation around its intentions regarding licensing those patents.
Holders of fundamental “industry standard” technology patents are supposed to license them to rivals on “fair, reasonable and non-discriminatory terms” — or FRAND for short. Among other things, the Federal Trade Commission is investigating Google’s decision to continue litigation started by Motorola around some of these key patents, which were being asserted against Apple and Microsoft’s Xbox.
The paradox or perhaps irony here is that many of Motorola’s patents are so fundamental (e.g., 3G and WiFi) that regulators in the US and Europe won’t allow Google to use them as a “sword” in litigation. The company will almost certainly be compelled to license those patents on “reasonable terms.” Less fundamental patents could theoretically still be used as the basis for litigation against rival products.
Judge Posner in Chicago balked at Apple’s efforts to bar the sales of selected Android devices, while Judge Koh in California granted Apple’s injunction against Samsung. Posner argued that granting an injunction against Android phones would be “catastrophic” for competition. However Judge Koh wrote, “Although Samsung has a right to compete, it does not have a right to compete unfairly, by flooding the market with infringing products.”
The iPhone created a design standard for the industry. Rivals clearly imitated that design, though some have moved beyond it. Yet Apple has “borrowed” from Android software innovations as well.
To the extent that patents exist, patent owners should have the ability to protect their “inventions” against naked infringement. But the public also has an interest in innovation and a competitive marketplace. How much imitation or duplication should the market and the legal system allow for competitive reasons?
The legal system is having trouble striking that balance, as the two cases above illustrate. Unfortunately, however, there’s little hope that a legislative resolution will come any time soon.
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