All right, Apple has fought with the competition in the courts over patents for several years. There have been a few wins, a few losses, and a few draws. But at the end of the day, how have these legal skirmishes changed what you or I can buy? Except for some minor software revisions as workarounds, the end result is that people are still buying iPhones and Samsung Galaxies in huge numbers, and ignoring most of the rest of the pack.
Certainly, the legal teams that have managed all these cases have prospered, and the cash hoards of the companies involved have been reduced somewhat. Of course, with Apple, it’s all just chump change. But at the end of the day, it’s hard to say that the industry has changed at all.
Now this doesn’t mean that a company shouldn’t protect intellectual property. Apple’s designers have created all sorts of amazing and not-so-amazing products, and every single nook and cranny is subject to a patent application of some sort. You almost wonder if the lawyers are always in call, days, nights, or weekends, to rush the applications to the patent office as soon as the details of a new invention are set down.
The patent portfolios continue to grow to incredible numbers. In recent intellectual property auctions, thousands have changed hands, and sometimes these auctions involve several companies who decide to work together to share the technology, rather than fight in the courtroom.
You almost imagine that, every time a new tech gadget is available, competing companies will buy up a few of them, take them apart and examine the components, the design, and the software to see what, if anything, might infringe on their intellectual property. With so many thousands of patents running around, that itself must involve an incredible and time-consuming effort.
I suppose you might compare it to a fire station. The personnel wait for the alarm to sound so they can put on their uniforms, or suits, race to the trucks, and rush to the scene of the disaster. Or maybe envision the scene in the 1960’s version of “Batman,” where, pressed into action, the “Caped Crusader” and the “Boy Wonder” raced down a fire poll to reach the Batmobile and speed on their way to the scene of the crime.
Now in an ideal world, these tech companies would happily license industry standard patents to all comers who are willing to pay the price. Proprietary features would remain proprietary, and a company will make sure that their new products aren’t infringing somehow on another company’s product, though there are expansive gray areas. It may also be that management will often decide to take a chance where they regard a feature as possibly infringing on someone else’s patent, hoping to fly under the radar, or escape an import ban or other legal action. In the end, the cost of litigation may be less than the sales achieved by incorporating that feature. So it’s a risk worth taking.
But the real culprit may be lax patent laws, where even minor revisions to existing technology might receive approval. The new “first to file” scheme in the U.S. probably won’t change the situation all that much. In a world where Amazon’s “1-Click” feature is protected — and Apple and other companies license that all-so-obvious technology from Amazon — you wonder how such an “invention” got protection.
Of course that’s not the only case of a questionable patent. What about being able to record one TV show on a DVR while watching another? It’s just common sense, right? Well, not to TiVO, which owns the patents for that technology and has probably earned far more money from selling the rights and suing the infringers (such as Dish Network) than from the sale of hardware and software.
You also have companies that have never invented a thing, never sold a thing. Instead, the business plan is to buy up loads of patents, and then demand payments from companies who appear to be using the technologies they represent. If they don’t pay, they are sued. But these patent trolls don’t just file suits anywhere. For some reason, the United States District Court for the Eastern District of Texas has become a patent lawsuit haven, a venue where the patent trolls seem to stand a far better chance for victory.
Now most companies, faced with uncertain legal outcomes if they fight, would rather just write checks to the patent trolls and move on. Some sue, with mixed results. Again, you wonder about patent laws that have allowed such paper pushing and paper shuffling companies to prosper without actually advancing the state of the art in any respect.
The recent technology sharing pact with Apple and HTC, and the decision of the U.S. government to order Motorola Mobility to license industry-standard patents fairly may indicate that the current level of legal skirmishes are due to die down. Certainly Apple’s victory against Samsung last year in a Northern California courtroom is hollow. They won some money, but the infringement wasn’t considered “willful” and no products were banned. So was it worth the bother? Probably not, and if more courts act that way, perhaps a little sanity will eventually prevail.
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