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The Patent Wars Are a Crazy Circus That Just Won't Leave Town

Steven Blum
4

Today, there are so many lawsuits taking place in the smartphone industry that it's impossible to keep track. Every day we see a story about some judge who just decided that such-and-such Android smartphone or tablet has or has not infringed an Apple product. The ruling itself varies depending on the judge presiding, the patent in question and, it seems, how gassy the judge felt on that day after lunch.

There's no method to the madness; recently, a UK judge ruled that Samsung hadn't copied Apple's tablet design because the Galaxy Tab wasn't as "cool" as the iPad. “They do not have the same understated and extreme simplicity which is possessed by the Apple design,” Judge Colin Birss said of the Galaxy Tabs, and “they are not as cool." So now judges of these epic court battles seem to have the eloquence of the average employee at Best Buy.

After making such a ruling, this same judge is ordering Apple to display a notice on its website for six months and in U.K. newspapers that Samsung actually didn't copy Apple's iPad – a ruling sure to please Android fans, but which just pours flames on an already out-of-control patent wildfire.

So, that's basically where we're at. We're at a point where judges are making decisions on patent rulings based on "coolness" and then forcing the losing party to make a public apology. But even that decision is just a slap on the wrist, because no matter what, the broken patent system will continue to support legal action by any party for any means. Just as Judge Posner, the U.S. judge who ruled against Apple in their injunction against Motorola, said last week, "As in any jungle, the animals will use all the means at their disposal, all their teeth and claws that are permitted by the ecosystem."

Clearly, it's time to admit that the patent system is broke and the legal system has no idea how to regulate the smartphone industry – and probably shouldn't even try – but for now there's no foreseeable end to the madness. We've talked a lot about the uselessness of tech patents in the past – how they're so broad as to be unenforceable, so vague as to be easily abusable – and today's crop of news stories simply continues to support this assumption. Not only do we have judges making rulings based on "coolness," but we have a U.S. patent office so clueless and -out-of-touch with the real world that they're granting patents to Apple that could allow these crippling lawsuits to continue into eternity. Today, for example, the USPTO allowed Apple to patent "an interface for displaying documents, lists, text messages, emails, and more on a smartphone screen."

Can you get any more maddeningly broad than that? It's as if the entire idea of the smartphone has just been patented by Apple. While I'm sure this patent will be debated for months – possibly years – to come, it still offers Apple a platform from which to launch a lawsuit against any company it sees fit. The patent specifically covers the scroll bar that appears on the side of your smartphone but could easily be used to cover a whole lot more.

Barring an astroid falling on the U.S. patent office, I don't see these lawsuits ending anytime soon. While we can hope for reasonable judges like Posner to preside over them, that's unrealistic to expect. The U.S. court system seems to be becoming wary of these lawsuits, but that won't diminish their frequency. Until the madness ends, we can look forward to the dubious pleasure of reading almost constant back-and-forth opinions regarding the legality of certain smartphones. It's a big circus that just won't leave town – and not the Cirque Du Soleil kind, but the dreary, depressing kind filled with abused elephants and creepy jesters – and we're all forced to stay in the audience forever.

This isn't what innovation is supposed to mean. It's not supposed to mean that you improve one aspect of technology and then get to dominate an entire field forever and fight your competitors at every step along the way. It isn't supposed to be like this, but until there is systematic change, the sideshow will continue.

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    Nick N. Jul 19, 2012 Link

    I agree with your argument wholeheartedly, Steven, but on the other hand, I wonder if all these lawsuits are actually doing all that much damage to Android. I mean, think about it - despite the countless patents and Apple's best legal efforts, Android phones and tablets continue to be made in the millions by numerous companies, big and small. And the Android operating system continues to get better and better and is spreading into all sorts of products like wildfire.

    The lawsuits create a lot of bluster and noise but I'm not seeing any noticeable consequence from that on the street. Apple's shareholders surely must be wondering the same thing - the company is spending millions in trying to stifle, suppress and destroy the competition, but the strategy is simply not working. The competition is going from strength to strength, so much so that Android now accounts for more than 50% of the WORLD smartphone market.

    At the end of the day, it seems that Apple has been throwing good money after bad. Has Apple ever managed to inflict any significant, long-lasting damage on Android? Any victories Apple achieves appear to be relatively minor and short-lived at best. Meanwhile, Apple's products are quickly becoming old technology. I think they will struggle to keep up with Android's developments and worldwide growth. With only one phone and one tablet, Apple can only stay on the cutting edge for so long...

    So while it is frustrating to read about Android having to fend off attack after attack after attack, in my opinion it seems that these attacks are really more like the bites of mosquitoes than sharks.

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  • Steven Blum Jul 19, 2012 Link

    Nick, thanks for the super well-thought-out response. I agree that it's tempting to see this as a whole lot of noise and not much else, and I also find it hard to point to direct damages to the Android platform. But that's the point: we don't know what number of incredible innovations could have been developed with the money Samsung is spending on their legal team. Same goes for Motorola and HTC. Certainly there are many impediments to true innovation -- carriers, for one -- but it's hard to argue that this giant pool of money couldn't have been better spent on something else. At the end of the day, an enormous amount of cash is still being spent which could be spent on other things.

    Intellectual Ventures alone makes over $1 billion licencing their patents to other companies, while it's estimated that patent lawsuits have cost innovators $500 billion in lost profits. It's a big mess, and the lawsuits between Apple and Samsung are really just the tip of the iceberg. For more, see here:
    http://www.androidpit.com/Problem-with-Patents

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  • Lurker Jul 19, 2012 Link

    I think bigger companies like Samsung might not be feeling the pinch from Apple's frivolous lawsuits, but smaller companies will surely be affected by these patents. And it's not just Apple, there are many companies who just file broad patents and wait till someone comes out with a product so that they can sue them and earn money. The patent system is broken beyond all measure and needs a complete overhaul. There are many innovative small companies that have great ideas but are scared to bring out any products because they could be sued by some patent troll who has a patent but no products.

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  • CJ Brown Jul 22, 2012 Link

    Interesting article Steven; although I believe its only a matter of time before manufacturers using Google's Android will probably team up & file legal complaints against Apple (& Apple can not afford to answer such legal complaints from HTC, Samsung, Motorola, etc all @ once); & as much as I loath Companies using the Court System like a brat? I think stopping Apple from wasting time in Court is a top priority (besides, shouldn't Apple be spending that time & money being more innovative? Create new & better products? Living up to Steve Jobs' legacy?) ...

    in a perfect world, money wouldn't be wasted on legal issues .. it would be spent in creating new & innovative technology (& perhaps allowing smaller Companies to come in & make improvements as a subcontractor) ...

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