A Fine Line in the Patent Wars

Imagine developing and patenting the technology that allows a user to return a “sleeping” iPhone back to functionality. Apple did just this with its “slide-to-unlock” feature, a defining characteristic of the iPhone that users have come to love. Specifically, Apple was granted a patent by the U.S. Patent and Trademark Office for the diagrams that it had submitted, showing a white rectangle with curved edges that, when dragged to the right by the touch of a finger, unlocks the device and directs the user to the home screen. Over the years, more and more smart phones have appeared with very similar features. After all, all devices need some way to unlock, and there are only so many ways to achieve this. The unlock feature, however, is an example of what has caused a great deal of controversy and led to the emergence of a recent phenomenon regarded by many as the “Patent Wars.”

Certain Samsung phones allow a user to touch the center of a circle on the screen, and then unlock the device by dragging a finger to any point outside of the circle according to the user’s particular access code. In February, Apple filed suit against Samsung with claims that Samsung violated a series of its patents, including the slide-to-unlock feature. Apple and Samsung are currently engaged in a 20-lawsuit, 10-nation battle over this disagreement. Additionally, Apple has asserted claims against Motorola for alleged patent violations of similar nature. However, something unexpected happened earlier this year – a Swedish company called Neonode Inc. declared that it had already been granted a patent for a version of the slide-to-unlock feature. Apple had unknowingly been beaten to its own idea, and arguably should neverhave been granted its patent to begin with. Stories such as this have become a familiar trend as innovators continue to develop new technology each and every day. Can a fine line between patents, particularly in the smartphone industry, ever be effectively established?

The answer to this question is extremely unclear, and whatever solution that may exist will likely be difficult to find. Thousands and thousands of characteristics of smartphones such as the unlock feature of the iPhone exist as patents. In fact, Google’s chief legal officer, David Drummond, has expressed that up to 250,000 different patents may apply to a single modern smart phone. After all, companies have claimed the rights to the most minuscule of features, and often the distinction between these features is highly ambiguous.

Professor Scott Stern, who teaches at the Sloan School of Management at the Massachusetts Institute of Technology, is a patent expert who is well aware of the uncertainty involving patents of today’s technology industry.

“The trouble is that in this industry so often a patent is not a clearly defined property right, but a lottery ticket of uncertain value,” said Stern, who is convinced that this patent ambiguity unintentionally creates risk and cost. If patents no longer provide a guaranteed incentive to innovators, the enormous benefits of technology patents appear to be diminishing.

However, news of massive patent buyouts executed by some of the world’s largest technology companies has covered recent headlines. In 2011, Apple, Microsoft, and four other companies completed a $4.5 billion joint buyout of Nortel Networks, a bankrupt Canadian telecommunications maker. Google purchased Motorola Mobility for $12.5 billion last August, and Microsoft bought $1 billion worth of AOL patents in April of this year. The aforementioned buyouts value individual patents of each deal at $750,000, $400,000, and $1.3 million, respectively. These numbers are staggering. What use value do large numbers of patents bring to the arsenals of the world’s top technology companies, especially if patents are becoming increasingly difficult to distinguish from one another? What is causing this recent trend of massive patent acquisitions?

Historically, the main idea behind patents is to provide ongoing incentives for individual innovation. However, the original inventors of these ideas are largely forgotten in today’s world. Recently, the main premise behind the massive acquisitions of patents, particularly in the rapidly expanding field of smart phones and tabloids, has become increasingly geared towards security. Ownership of patents grants companies both a stronger legal and negotiating position when faced with the growing ambiguity of the world of technology patents. Loaded with large stockpiles of patents as a defense mechanism, companies have the increased capability to secure their products and defend against potential litigation. The potential for future innovation is also strengthened. The extremely high cost of eliminating these risks is thought to greatly outweigh potential future risks themselves.

It is difficult to say what the future may hold for technology patents. Interesting responses are already beginning to emerge. Just this April, Twitter announced that it will allow its engineering inventors to veto lawsuits against alleged infringers of patents that they develop. Under the agreement, Twitter cannot sue another company or person without the consent of the engineer to whom the patent was rewarded. This action may provide an effective model for companies to avoid expensive legal messes, such as those currently fought by companies such as Apple.

One thing is certain – too many technology patents remain vague and excessively broad. Michael Carrier, a professor at Rutgers School of Law, is correct when he states, “When you have companies spending hundreds of millions in litigation, something is seriously wrong with our patent system.” Patenting of technology products will continue to face struggles unless lawmakers scrutinize the recent troubling trends and develop an appropriate response.