/ Technology

Tech ‘patent wars’ are bad for consumers

Patent on crossword

In recent times the likes of Google, Apple, Microsoft, HTC, Samsung and many more have locked horns in increasingly bitter patent disputes. Does this matter for consumers and what could the long-term implications be?

Even a hardened tech fanatic like me can’t help but groan at patent disputes. Patents are effectively a means of claiming ownership of a particular feature or way of doing something.

And most of the time companies will simply license the use of their patents to others. For example, both Apple and Google license Microsoft’s system for syncing email and contacts on a mobile. Money doesn’t always trade hands – sometimes companies trade the use of each others’ patents.

Sometimes, however, things get ugly. High-profile patent disputes used to be the domain of so-called ‘patent trolls’ – small companies that existed purely to patent ideas and sue those they believed infringed them for a profit. In the past, larger “legitimate” companies normally negotiated with each other and only occasionally came into conflict.

Now, though, the industry’s biggest companies are at each other’s throats, disputing patents left, right and centre. And they’re taking their disagreements public.

At the centre of it all is Google’s “free” Android operating system, which Google now claims is being victimised. Is this true and what does it mean for the man of the street?

Google: Apple and Microsoft are patent bullies

Google recently published a highly unusual attack on Apple, Microsoft and others for what it deemed anti-competitive activity. David Drummond, Google’s chief legal officer, said:

‘Android’s success has yielded something else: a hostile, organized campaign against Android by Microsoft, Oracle, Apple and other companies, waged through bogus patents… our competitors want to impose a “tax” for these dubious patents that makes Android devices more expensive for consumers.’

His complaints centre on bidding for a large patent portfolio. Apple, Microsoft, Oracle and others formed a consortium to bid for the patents, and outbid Google with a $4.5billion offer. Microsoft is now seeking license fees of $15 per Android device from Samsung, putting a price on what Google offers for free. Google feels this is unfair.

Not the whole story

If you believe Microsoft, however, Google isn’t being entirely honest. In fact, Microsoft claims it invited Google to join the patents consortium, but Google refused. A Microsoft employee went so far as to publish Google’s rejection email. The implication being that Google wanted the patents for itself, rather than sharing them with competitors. .

Further embarrassment has been heaped upon Google in its patent dispute with Oracle, however. Internal emails appear to reveal Google knew it was infringing on patents in Android and chose not to take a license.

This, and the revelation from Microsoft, has led many to accuse Google of wilfully infringing on patents. It’s Google’s fault, they say, and it’s paying the price of a risky non-conformist strategy.

What does it all mean for you and me?

Such disputes might keep the tech commentators busy, but for ordinary consumers, like you and me, it is a complete turn-off. Many of the problems are caused by the US patent system, which is widely regarded as flawed – but why should we care?

Google is correct in saying that these patent battles could lead to higher prices for consumers. Indeed, Microsoft already makes money from every Android phone HTC makes. It’s reasonable to believe this cost has been passed on to you and me.

However, even worse than higher prices, such disputes could have implications for smaller, innovative companies. If it’s so easy to patent ideas and concepts, even if you don’t use them, what are companies who are trying to make innovative products to do when they come up against such barriers?

Google is by no means the innocent party in this dispute, but its squabbles with rivals are symptomatic of a much larger problem; a problem that makes it increasingly difficult for new and emerging companies to succeed, resulting in less choice for consumers.

Wirecutter says:
12 August 2011

Once upon a time the US patent office was run under reasonably sensible rules, this was up to I think about 4 or 5 administrations ago. Thats when the lawyers took over from the engineer/practical side and it became possible to change one letter on a existing patent or quite simply just draw a shape and register that! ( four wheels on the corners of a box?) then challenge one else with a current patent that looks the same and as long as you have good lawyers and a large fund you will win!

PandL says:
15 August 2011

I am sure that given the general feelings on this board, not everybody will agree with my post, however, I suggest that the world of patenting is little understood by the general public. Whilst I agree that the software industry has a disproportionately large number of patent trolls, this should not lead to condemnation of the patent system as a whole.

>It’s clear that non obvious has to be decided case by case, how can you define something that isn’t yet invented?>

Firstly, each and every patent application IS examined on a case by case basis. Every patent application is thoroughly searched by a skilled searcher by the patent office before it is even allocated to an examiner. The examiner will then review the invention and the prior art and in almost every case objections to the novelty and inventive step of application are raised. Inventions need to be both novel and inventive to be granted. If an application for a patent is obvious by virtue of combination of two earlier documents, it will not be granted.

Secondly, every patent is published before grant and every patent can be challenged either by formal opposition procedure or by submission of third party observations to the Examiner by any interested party. The patent office have nothing to gain by granting patents which are not valid.

I am not certain that patents actually stifle innovation. The point of the patent system is to grant a monopoly to the inventor for a short period of time in order to reward them for their investment in innovation. Why should company X not be afforded a short monopoly for a product if they have spent hundreds of thousands of pounds researching in the area? There are exemptions in the patents act which allow researchers to work around patented technology to develop new products, provided they are not commercially exploiting the patented technology without this constituting an infringement. If a small company develops a new product, they can obtain a patent, and ultimately sell it or license it onto a big player in the market, this stimulates innovation!

The US patent system is quirky and differs considerably to the patent system in the rest of the world, however, the system is currently under reform and changes are expected soon. In Europe software patents can be filed, but they must have a technical function as their outcome.

If the patent system worked like the copyright system and inherently protected ideas this would be even more chaotic as there would be no examination procedure and no doubt many more patent battles between companies who have nothing defensible at all.

Whilst patents are granted territorially they are searched against prior art globally. The only reason they are territorial is so that patent owners can pick and chose where they want protection rather than pay for countries they don’t want.

The speed of movement of technology has little relevance to the duration of patents. Where technology is fast moving, patents become stale quickly as people invent new technology and stop using the old patented stuff. In other fields, such as the pharmaceutical industry it is rare for a product to be invented, tested and given approval to market before the end of the current 20 year patent term. For this reason, pharmaceutical patent holders can apply for 5 years supplementary protection if they have not been able to get to market in time to be compensated for their research efforts.

This is not strictly true, I am a patent agent and whilst I do have to charge my clients, they are not obliged to use a patent attorney to protect their inventions. Anybody can file a patent application themselves without an attorney. The ‘translation’ process often involves helping the inventor to identify the invention, by searching databases, to find out which parts of their ‘invention’ are actually new. By spending a little time and money doing this the applicant can find out whether it is worth filing the application before investing in obtaining a patent. If the researcher doesn’t want to spend money on filing patent applications, they don’t have to. I can only assume that they do because they do find protecting their ideas useful and can use their patents to add value to their business.

Finally, I can’t afford a Mercedes, but do have a bicycle.

Interesting, Google has just purchased Motorola for $12.5 billion. And don’t pretend that patents isn’t one of the reasons. Google’s co-founder Larry Page comments: “Our acquisition of Motorola will increase competition by strengthening Google’s patent portfolio, which will enable us to better protect Android from anti-competitive threats from Microsoft, Apple and other companies.”

Interesting – the dynamics of this patent war are changing daily.

Patents are essential for protecting real inventions.
I have experience with patenting non-software scientific inventions in European and US patent offices.
The US patent office is incompetent. I’m told that US patent examiners are poorly paid, so many of them are immigrants in their first US job; their command of English is often poor, and they are only working there until they can find a better-paid job.
Another problem, I suspect, is US NATIONAL INTEREST. Also in non-software patents, I see a lot of patents granted to US applicants, for inventions which are obvious or non-innovative*.
But it’s a different story if you are a foreigner. I had a “hard” and clearly innovative invention which had no problem getting patents in other juristictions. But the US examiner would cite any old patent in the same vague subject area, and blandly state that it foresaw my invention, without further explanation. Then I would have to spend time explaining why it was irrelevant. Then he would withdraw that objection, but cite another, even more irrelavant, old patent. This happened 4 times, and each of the objections was withdrawn. Finally his supervisor stepped in, cited an even MORE irrelevant old patent, and said he was not open to discussion.

*(to take an easy example, I saw a patent granted recently to the use of kapok as a sound absorbent in loudspeaker boxes. Apart from it being obvious that anything fluffy like kapok could be used as a sound absorbent, it is not innovative: I myself own a pair of loudspeakers stuffed with kapok, made in 1971).