Why the Patent Cold War needs to end

Why the Patent Cold War needs to end
We've all seen the news over and over that this company is suing another, or this company has bought the patent profile of another. The trouble is that we rarely get into the specifics of what is happening, why its happening, and how the system works. Unfortunately, the answers to those questions are rarely compelling, satisfying or even rational. Today, Google finally sounded off a bit more clearly on how it feels about the current system, and honestly we hope Google's vision is what comes to pass. 

In a blog post today, David Drummond, Google's Senior Vice President and Chief Legal Officer, sent out a warning to all of us to be wary. In his words, "Microsoft and Apple have always been at each other’s throats, so when they get into bed together you have to start wondering what's going on." In this statement, he is referring to the fact that Apple, Microsoft, RIM and others in a consortium paid close to 5 times the estimated value for Nortel's patent portfolio. The prevailing theory, even in the Justice Department, is that these patents could be used to destroy Android, and Drummond certainly feels that to be true. Google has said it before, and Drummond says again that this move is anti-competitive and aims to control the market through litigation rather than innovation. Microsoft's General Council Brad Smith said tonight in a tweet that the consortium asked Google to join in the Nortel bid, but Google declined, so that certainly puts Google's comments in question, but the overall sentiment doesn't change. Drummond predicts that this move and others like it will lead to the patent bubble popping, and in that we really hope he is right, because whether or not Google could have been part of the consortium, the system of buying patents for protection shouldn't exist in the first place.

The warning shots

Of course, the Nortel patent purchase isn't the first of its kind, and likely won't be the last. We have continuously seen big companies amassing patent weaponry to scare others in what is essentially a Patent Cold War. As far back as 2008, we saw Nokia and Kodak enter into a deal that would allow each to use the other's patent portfolio. We've seen HTC and Samsung purchase patent protection from Intellectual Ventures (and we'll have more on IV later on.) We've seen HTC in the process of purchasing the patent portfolio of S3Graphics for protection against Apple. We've even heard that HTC pays Microsoft for each Android handset in order to avoid similar lawsuits from the Redmond giant. And, plenty of other patent portfolio purchases. The general rule for all of these purchases is that they are for protection rather than for filing lawsuits, but of course lawsuits are always still filed.

The lawsuits themselves are too numerous to recount in detail, but the tricky part is that the biggest players almost never attack each other directly. Instead warning shots are fired around. Apple won't sue Google directly over alleged patent infringement within Android, but rather will sue HTC. Of course, the little guys can sue the big guys all the time, and they certainly will. Unfortunately, when you get low enough on the totem pole, the little guys are rarely alone in their fight and usually have help from companies like Intellectual Ventures (told you they'd be back) who specialize in collecting patents.

Now, we don't want to participate in name calling, but many consider companies like Intellectual Ventures to be "patent trolls". IV would insist that it is in the business of helping small companies and inventors to get paid for their inventions. Others would say that IV is simply taking advantage of a system that is flat out broken. 

A broken system

We aren't going to weigh in on whether or not IV is working the system in an acceptable way or not. We're not even going to comment on whether or not Apple, Microsoft, RIM and others are trying to compete through litigation rather than innovation. Those aren't the real issues here. It's not a matter of whether it's right or wrong for these companies to be acting the way they are. It's a matter of whether the system should allow or even foster this behavior in the first place. 

One thing that many people don't seem to understand about patent law cases is that who comes out with a product or idea has absolutely no bearing on these cases. People can go back and forth constantly saying that Apple stole an idea from Google or Microsoft, or Microsoft stole from HTC, or Samsung stole from Apple, but those arguments are nothing but white noise. All that matters is what patents you hold or own, and the patent office is ultimately to blame for how the system works. 

Originally, when it came to technology, patents were treated more like literature. So, you could be granted a patent on specific lines of code, but you wouldn't get a patent on a broader idea. So, in Oracle's lawsuit against Google, the claim is that actual patented code was used in Android. That is a lawsuit that makes sense.

These days, patents can be granted for broad ideas, even multiple patents for what amount to the same idea, which is why acquiring patent portfolios can be so useful. You acquire patent portfolios to either gain patents that could be used in a counter-attack, which would make a settlement easier, or you could acquire patents that cover the same ideas, making the lawsuit invalid. For example, one of the patent claims that Apple currently has against HTC is for a "system and method for performing an action on a structure in computer-generated data". This is a fancy way to say the patent covers a system that allows you to click on a phone number and be given the option to call that number. To be clear, the patent doesn't cover the actual code used, the patent claims that Apple owns the idea that you can call a number on a touchscreen device by clicking it. Does that sound like a rational patent or does that sound like an idea that hundreds of people likely had at the same time?


We know that there are rational patents out there, but when companies like Intellectual Ventures can make a lot of money (and they make a lot of money) litigating these issues, that indicates a problem in the system. There are patents that make sense, like that of Oracle against Google. But there are also many unnecessary lawsuits that do nothing but add costs for companies (costs which are passed on to we the consumers), and keep companies from innovating because of resources taken up by lawsuits, and the fear that someone out there may already hold a patent for the idea that phones should be able to call phone numbers.

Patent law is out of control. It really can't be said any clearer than that. We can go on and on talking about the twisted web of lawsuits being tossed around, and how companies have to buy up patents simply as protection, but the simple fact is that patent law, especially in the technology sector, has gotten out of control and needs to be fixed. And, unfortunately for us, the biggest victim right now in the current Patent Cold War are mobile users. We are all caught in the middle as these superpowers amass their nuclear arsenals "for protective purposes", while occasionally firing off warning shots to show how powerful they are. All of this defensive weaponry is doing nothing but making other companies scared to innovate, it makes devices more expensive because of litigation, and the only ones paying the price is us.



1. ArmageddonX

Posts: 96; Member since: May 11, 2011

Everyone has gone crazy with these patent lawsuits and this article says perfectly what any reasonable person should be thinking about this situation.

2. messiah

Posts: 438; Member since: Feb 19, 2010

Hands down one of the best and articulate articles written for phone arena with zero bias. Great read.

3. Droid_X_Doug

Posts: 5993; Member since: Dec 22, 2010

Um, take David's editorial with a grain of salt/rice/whatever. He is basically whining because Google didn't bulk up on patents like Apple and MS did (along with many of the legacy technology companies). Now Google is paying the price (literally) for their opinion that patents don't matter. If Google had developed the patents that MS, Apple and Oracle/Sun have, they would be suing the f*ck out of everyone else.

4. quakan

Posts: 1419; Member since: Mar 02, 2011

Nokia has gone overboard lol

5. bossmt_2

Posts: 459; Member since: Oct 13, 2009

My issue isn't with patents per se, it's the vague patents like Apple's "using touch gestures "that should go away. Personally I wonder how often patents get in the way of innovation cause someone holds a vague patent.

26. ChiquiKon

Posts: 58; Member since: Jul 26, 2011

"Personally I wonder how often patents get in the way of innovation cause someone holds a vague patent." ........So do I my friend....so do I.

6. NeXoS

Posts: 292; Member since: May 03, 2011

What kind of idiots are working at the USPTO? How the hell did they even grant a request for a patent like that?

7. Sniggly

Posts: 7305; Member since: Dec 05, 2009

Once again Michael strikes. He's right; the patent system is completely broken. The free market is on the verge of not existing in the technological world due to these ridiculous patents.

38. Uzzelien

Posts: 131; Member since: Feb 22, 2011

The problem is Drummond has no right to bitch about them buying these. They were offered to join in on it and get "user rights" to them also. Google said no to it and that they wanted to use them to protect Google and companies such as HTC from lawsuits. IMO they can't bitch about them buying the patents.

8. Yeeee

Posts: 190; Member since: Aug 02, 2011

I like the iphone but i hate apple cause of s**t like this. Also they should change their os a little like having the bottom 4 icons changed to 8 or 12. Some people have more than 4 really important apps.

9. PhoneLuver

Posts: 481; Member since: Jul 05, 2010

Never knew Nokia sued almost every other OEM..

30. JS15278

Posts: 13; Member since: Jul 27, 2011

they sue them because they are the innovators NOKIA RULES

10. taz89

Posts: 2014; Member since: May 03, 2011

Great non biased after along time...it needs to be sorted ASAP...touch to dial lol

14. PeterIfromsweden

Posts: 1230; Member since: Aug 03, 2011

Touch to dial haha, that was funny. i remember HTC made touchscreen phones with WinMo before the iphone, where you could touch the screen to dial : )

24. ChiquiKon

Posts: 58; Member since: Jul 26, 2011

" Next thing you know, they will patent pressing a left arrow to move the cursor to the left. " To think that something like this could happen give me goosebumps >_

11. Stuntman

Posts: 843; Member since: Aug 01, 2011

The big picture here is how does the consumer benefit from these patent wars. Let's say that Apple, MS, et. al. manage to use these patents to destroy Android. Now Android is out of the picture. Obviously Android users do not benefit as they now have a dead end product. How does iPhone users or Windows Phone users benefit? If you look at the latest iOS announcement, you will find a number of new features for iOS users that Android users already have for quite a while. If Android weren't around, would Apple really have as much of an incentive to include these features? The existence of Android pushes Apple to improve their products because of competition. Apple users and even the general consumer benefit because of better features in devices. Why did you think that MS ditched WinMo and create Windows Phone? They realised that WinMo just can't cut it with the iPhone and Android around. Your slick WP device exists because competition pushed MS to create Windows Phone. As an Android user, I indirectly reap the benefits of all of the innovation from different companies that existed before and while my phone is being made. If Apple somehow got crushed in these patent wars, it will stifle innovation from Google, HTC, etc. As these patent wars escalate, all companies may end up having to spend more resources on litigation instead of product innovation. Seeing some of the patents that are under dispute, it seems that the lawyers are trying to push the envelope on what they can patent and sue rather than actually protecting something that I would consider to be innovation. Highlighting a phone number so I can tap on it to dial is not what I would consider to be something that should be protected. Next thing you know, they will patent pressing a left arrow to move the cursor to the left. Unless something is done, I feel that the only winners will be the lawyers.

18. snowgator

Posts: 3621; Member since: Jan 19, 2011

Very well said.

25. ChiquiKon

Posts: 58; Member since: Jul 26, 2011

" Next thing you know, they will patent pressing a left arrow to move the cursor to the left. " To think that something like this could happen give me goosebumps >_

12. Roberto Lim unregistered

The patent wars have started, and instead of trying to win market share with innovative products, the smartphone wars will be a patent war also. HTC acquired patents from S3 which it probably does not need except to defend itself. Samsung (and Google and Apple) are not looking at InterDigitals patents. Software protection should really have been limited to copyright which protects the expression of an idea. Software patents protect the idea itself. Patents are held by companies which never actually use them, until someone else uses the "idea". Remember Cygnus Systems Incorporated's lawsuit against Microsoft, Apple, and Google regarding a recently-awarded patent on a “system and method for iconic software environment management. Tele-Publishing Inc, accused Facebook of violating its patent on "providing a personal page." Japan-based Mekiki Co Ltd sued Facebook for infringing on three of its US patents for a "human relationships registering system." The problem is no one wants to compete anymore, they all want to be the sole provider. In the end, the consumer loses.

13. The_Miz

Posts: 1496; Member since: Apr 06, 2011

Sorry Android uses, but in society, there exists something called intellectual rights. These patents are INTELLECTUAL RIGHTS. Stop trying to justify Google blatantly copying iOS in their faulty, buggy OS. They lost the Nortel patents, so now they're trying to whine to the gov't about it. Boohoo.

15. PeterIfromsweden

Posts: 1230; Member since: Aug 03, 2011

Even though im not a android user (had android before and will never buy it again) I can not see where andorid has copied apple at all. But i see that apple has copied Andoird with the pull down notification. Oh and also apple copied the body of a samsung phone to make the first iphone...

20. the icrap destroyer unregistered

once again miz you prove how dumb an isheep can be and when i mean i sheep i dont mean peter cuz he is actually a reasonable person you on the other hand want to do is troll around with ignorant comments...oh by the way i dont care about the "feud" between apple and google, so whatever you say is pointless, because its hard for a waste a space to make a valid point, or a point at all.....are you crying yet?

22. bizwhizzy

Posts: 51; Member since: Aug 04, 2011

Let's do a Miz impersonation! Topic: Anything The_Miz: Derp derp derp Apple derp derp Apple iderp. Errything else suuux!

16. Mad Iguana unregistered

I think it's quite important to distinguish between real patents and vapour patents. In the diagram above, I think the majority of the lawsuits where Nokia are suing (as with the Oracle / Google issue) are real patents, related to technology that Nokia developed in the 90s (remember that the fundamental phone technology used in most handsets was developed back then, and largely by Nokia who were still market leaders in all mobile technologies); I would expect that the lawsuits by Kodak would be in a similar vein. The vapour patents though, like the one mentioned above held by Apple, are just a joke. And with respect to these, then you're right that the patent system is a sham. But for the purposes of protecting true innovation (such as the technologies I mentioned earlier), there needs to be some patent protection. As an aside, the diagram is out of date, surely, since Nokia and Apple have settled their case. As another aside, the argument that people are "litigating rather than innovating" can be a misnomer, because in many cases, the litigation is being used to protect previous innovations.

17. danalmillan

Posts: 25; Member since: Jul 08, 2011

I personally think that the "litigating rather than innovating" is very accurate because at the rate these lawsuits are going, some of the smaller companies may be driven out of business or have to revamp their products to a point that innovation is too costly. I am an android user and have also use blackberry, palm (hp), and toyed with iPhones and iPads. My personal opinion is that ALL phones will have to have some similarities to function. What should be being protected by the patents is the codes being used to reach a reaction and not the reaction itself. I also have to admit that I personally think Apple has went too far in the patent lawsuits and may even indirectly be the cause of the current patent war. Every time I turn around I am reading about Apple suing this company or that company over patents... PLEASE GET THE PATENT SYTEM FIXED BEFORE THE CONSUMERS ARE LIMITED ONCE AGAIN TO FEATURE PHONES BECAUSE THE SMART PHONES ARE ALL BLOCKED BY ANOTHER COMPANIES PATENTS!!!!

27. Mad Iguana unregistered

I see your point to an extent, but if an innovative company can't protect its innovations by litigation, then there would be no point in innovating either. It works both ways. Again, the distinction is between real patents that protect real invention / innovation, which should be enforced and protected etc., and vapour patents that are only used to take advantage of the system.

19. tech_freak unregistered

I dont know why some people are supporting companies to have such ridiculous patent lawsuits...if u have innovated something its ok have it in ur name that u have invented it but why not let others use it and take up the challenge to bring more refinement or modifications to it n make others follow u.. Blocking useful innovations to self will is gonna hurt the customers more than anybody else..

21. grim excitement unregistered

There is some cheese in the fridge Sarah

23. gallitoking

Posts: 4721; Member since: May 17, 2011

i just comment how on the picture.. Google went for the low blow on Steve Jobs...and how Steve dodge the malisious kick.. jokes aside.. the moblie indistry is moving at a speed of light and everyone wants a piece of the pie...one or way or another.... we as consumer will be the ones being hurt as the money will come out of our pockets..

28. rex1213

Posts: 77; Member since: Jul 29, 2011

I'm no Apple hater but I must say, Apple is the one exploiting the faulty system the most. In short, Apple is the worst offender of the faulty system. I never remembered someone else patenting for gestures or for stupid phone menu icons! Lol, look! I am the first person to wake up from our house and so I am the first one to brush my teeth. Does that mean no one from our house has the right to brush their teeth after me just because I did it first or just because I thought about the idea of brushing my teeth way ahead than the others? I know it's a bit silly example but it relates to what Apple is doing. They're like, "Hey hey, I did it first. I should sue you for doing or thinking the same thing after me." Funny world then!

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