In the patents war, nothing is patently obvious
Apple and its Android rivals are embroiled in a complex global campaign of patent litigation, the outcome of which could shape the competitive landscape in smartphones
PATENT TRIALS are part bombast, part boredom. Lurid accusations of corporate skulduggery and deceit quickly give way to a mind-numbing slog through the technical details and vague language of patent claims.
A jury in the US is currently slogging through all that to settle a dispute between Apple and Samsung Electronics in a federal court in San Jose, California.
The jury trial is the latest phase in a global campaign of smartphone patent litigation that began more than two years ago.
The legal clashes mainly pit Apple against rival smartphone makers whose handsets are powered by Google’s Android software, notably Samsung, HTC and Motorola Mobility, which Google bought last year. Dozens of lawsuits and countersuits have been filed in courtrooms around the world.
Yet the escalating patent battle is more than just legal manoeuvring. Patents can be powerful tools for determining the rules of engagement for major companies in a fast-growing industry such as smartphones.
Patents are declarations of invention that are often easily obtained from government patent examiners, but their real value – their validity and strength – is determined in court.
A few significant rulings in favour of one side or the other, industry and patent experts say, could shape the competitive landscape in smartphones and a sister industry, tablet computers. Court decisions, they say, can provide the basis for negotiating the terms and cost of licensing and cross-licensing of patents – or for keeping certain patented features exclusive to one company.
“Once you determine who is the genuine innovator, and in what technologies on the product, you reset the playing field,” says Kevin G Rivette, a Silicon Valley patent consultant and former vice-president for intellectual property strategy at IBM.
But to bring a real shift in the marketplace, Rivette adds, one side must have “strong patents, not incremental ones”. That issue is much debated, and litigated, in the smartphone arena.
Apple scored some points in June. Judge Lucy H Koh, who is presiding over the jury trial that began this week, issued a preliminary injunction against Samsung, ordering it to stop selling its Galaxy Nexus smartphone in the US.
Koh found that Samsung had infringed on an Apple patent for a “universal interface”, which broadly describes crucial ingredients found in Siri, Apple’s question-answering application (though the patent itself was filed by Apple before it acquired Siri in 2010).
But the power of smartphone patents in general suffered a blow in another federal court in June. Richard A Posner, a prominent federal appeals court judge in Chicago, dismissed a case involving Apple and Google’s Motorola Mobility subsidiary.
In his “pox on both of your houses” ruling, Posner ridiculed Apple’s broad claims for its user-experience patents and Motorola’s claim that Apple should pay it a rich royalty on its basic communications patents. Both companies are appealing that ruling.
Fierce patent battles in new industries have been the rule for more than a century, from the steam engine to semiconductors.
The lessons of history are decidedly mixed. Sometimes, patent warriors can hold off rivals for years, as the Wright brothers did in the aircraft business – though the cost in time, money and innovative energy diverted was daunting even then. In 1912, Wilbur Wright wrote: “When we think what we might have accomplished if we had been able to devote this time to experiments, we are very sad.”