Patent battles by tech giants a fuzzy midpoint in phoney war

WIRED:Ownership of tech intellectual rights is starting to look like a curb on innovation, writes DANNY O'BRIEN

MOTOROLA THIS week began proceedings against Apple for what it claimed were violations of its patents. The patents – Motorola claimed these include innovations in 3G and Wi-Fi antenna design, wireless e-mail, proximity sensing and software application management – all revolve around Apple’s iPhone, which just happens to be a major competitor.

If you haven’t heard about this lawsuit, it may be because it’s one of approximately a bazillion patent battles in the mobile field.

On Tuesday, Microsoft sued Motorola over its Android smartphones, including e-mail, contacts and calendar synchronisation. In March, Apple sued HTC, another maker of Android phones. The creator of Android itself, Google, was sued by Oracle for patent violations in August. Nokia is suing Apple, Qualcomm, the LG Group, Hitachi, Sharp, Samsung, Toshiba, Hitachi and Motorola.

As far as I know, only Apple is suing Nokia, but it’s early days. Kodak, which doesn’t make a phone, but has a lot of patents, is suing LG, Samsung, Sharp, Sony-Ericsson and Apple.

Is this an unusual level of cross-industry activity over patents? My impression in reporting on previous technology battles and patent wars is that, historically, companies are usually happier to settle these battles behind closed doors, with cross-licensing agreements or fees per device. So, for instance, in the world of DVD technology, companies like LG, Sony, Philips and Pioneer get $3.50 for every DVD drive, and 3.75 cents for every disk made. Warner gets 4 per cent per drive sold, up to a maximum of $8, and so on.

People would be shocked by the amount of money paid on consumer electronics that goes to people largely unconnected with the day-to-day production of those goods. The smartphone market didn’t benefit from this kind of prior agreement.

Worse, at least one of the entrants, Google, has the zero cost of its Android operating system as one of its major selling points (if “selling” is the right word for a free product). If the patent suits against manufacturers play out in the usual way, with a per-device settlement fee, Google will be in the odd place of earning far less per Android phone than many of their supposed competitors, Apple and Microsoft.

Meanwhile, Apple stands to lose something more precious to it than money. Conceding that homegrown and unique innovation isn’t actually the Apple way is potentially damaging.

Rather than being a sign of originality and innovation, patent ownership is increasingly seen as underhand and a money-grubbing tactic of the intellectually bereft.

Tech commentators call the instigators of patent lawsuits “patent trolls”. By that, they mean these companies like to patent ridiculously broad concepts, then wait until somebody develops their idea to profitability, and pounce like vampires.

Many patents in this early phoney war are a little ridiculous. Obvious tricks in writing software are asserted as a unique stroke of genius, when almost anyone “skilled in the art” (as patent applications say) could recreate the solution when faced with similar problems.

Independent technology entrepreneurs and inventors used to be a class that could dream of making an independent living from patenting an idea, and then selling that intellectual property to a big company to exploit. Now they see the patent litigators as the exploitative ones, slowing innovation by launching lawsuits against anyone in the same field. Only other large companies with their own patent portfolio can defend themselves against such expensive attacks, by promising a counter-lawsuit, and threatening mutually-assured destruction.

I think we’ll soon enter a period where purchasing a mobile phone will involve paying a squadron of companies, including Apple, Microsoft, and Google, a token amount to keep their peace. You’ll have a choice of hardware but no choice of who makes a profit on it. I’m not sure that’s how the patent system was intended to work.

And I’m certain it’s not how a free market is meant to work.