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Patent Wars and Copycat Moaning in the Smartphone Industry

written by: •edited by: Wendy Finn•updated: 10/23/2011

Snide comments in the press and courtroom battles seem to be a permanent fixture in the smartphone industry right now. There’s so much profit to be had that companies are willing to fight dirty for it and their main weapon seems to be patents.

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    Windows Phone People Hub If you read a lot of tech news and you take an interest in the smartphone market then you can hardly fail to have noticed the number of lawsuits that the big players are constantly unleashing on each other. Hardly a week goes by in the life of tech company execs without some kind of dig at the fact that their competitors are copying things. This morning it was Windows Phone boss, Andy Lees, whining about Android 4.0 and the fact the new People feature is just like Windows Phone 7.5’s People Hub. Yeah, because Microsoft is such a bastion of innovation, right? You wouldn’t catch them pilfering features right, left and center for their products now would you? To listen to Apple sometimes you would think they had single-handedly created the idea of a smartphone.

    It doesn’t really matter which company is doing the moaning – it always comes across as a bit pathetic and cynical and you can’t help feeling that if they were really secure in their product they wouldn’t be speaking out in public trying to undermine their competition. If your product is so great then let it do the talking. Yes I am looking at you Microsoft, especially since you are raking in more cash from licensing deals based on Android smartphones than from your own Windows Phone platform. Maybe instead of constantly criticising Android you should question why Windows Phone has such a pathetically small share of the market.

    As a consumer I don’t care who came up with an idea, I don’t care what the first TV with a remote control was and I don’t think my TV manufacturer owes them some debt of gratitude much less cold, hard cash. I want great products with the latest features and I don’t want to have to pay a premium because of licensing deals.

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    Patents and Lawsuits

    The legal embodiment of this kind of moaning is lawsuits where companies use their patents to force other companies to pay them licensing fees for infringing on their patents. Everyone has different patents and so they all end up suing each other and then come to some behind the scenes agreement to pay a huge sum of money. Of course the patent on its own isn’t going to do you any good -- you need the financial and legal muscle to back it up.

    The patent system has clearly gone a bit wrong. Or maybe it was just a flawed idea from the start. The basic idea originally was that you disclose an invention publicly and then get exclusive rights to it for a set period of time. It’s supposed to drive invention and innovation and offer concrete rewards for that research and dedication.

    In practice patents are granted when they probably shouldn’t be, many patents are so obtuse that they don’t really make sense, and since patents can be bought and sold they really have little to do with protecting or rewarding the original inventor. Instead of encouraging innovation they have the opposite effect. It would be pretty tough, or possibly even impossible to start a tech company now that doesn’t infringe on some patent or other. Many of the patents that have been granted are ridiculously wide in scope.

    Samsung Galaxy S2 When it comes to actually enforcing a patent you need to have the financial backing for an expensive court case and plenty of lawyers. That’s one thing when you have two behemoths like Samsung and Apple going at it. They have deep pockets and they’ll come to some kind of understanding because they both have legitimate complaints. HTC and Samsung can afford to pay a licensing fee to Microsoft for Android. If there is some additional profit to be sucked out of anything you can rely on companies like Apple and Microsoft to find it. Most of the big boys have enough in their patent portfolio to countersue and protect themselves. Sometimes they’ll weigh up the legal cost versus the licensing cost and just decide to settle.

    At the end of the day though those costs will be passed on to the consumer and it just results in higher prices.

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    Are Patent Trolls Parasites?

    If you pick up the right rock you’ll also find a bunch of patent trolls who basically acquire patents and then use them to sue companies for profit. The original patent owner probably isn’t in a position to enforce their patent so they sell it at a marked down fee and then the company buying tries to monetize it through the courts. It’s not right that the little guy can’t really afford to enforce his patent but it’s tough to see these leeching profiteers as the heroes they purport to be.

    Check out this NPR blog post for an interesting look into that.

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    Copying Good Features

    iPhone 4S Maybe the problem here is that many of the things these companies are suing over should never have been granted as patents in the first place. Has technology and software moved too fast for the patent office so that they’ve ended up granting patents that they don’t understand the implications of? In a word – yes.

    Luckily the courts often don’t uphold patents. Thankfully sense also often prevails when it comes to trademarks. Apple trying to trademark the terms “App Store" or “multi-touch" makes me sick. They’re not cleverly constructed or worded brands they are simple descriptions.

    From a consumer point of view we want new products that offer great features and we want them to be affordable. If someone comes up with a great idea for a feature and it works really well then I absolutely want to see it in new products, from touch screens to user friendly software interfaces. It makes sense to copy good features rather than re-invent the wheel and the practice is commonplace in loads of other fields without the “we did this first" or “they’re just copying us" moans.

    Patents are definitely a big barrier to widely available and affordable technology. But then the truth is that companies are only really focussed on making profit, they aren’t trying to advance the cause of humanity or make our lives better unless they can get rich in the process. If an awesome new development in tech or a new drug doesn’t look like generating enough profit then the company won’t do it and we all lose out.

    We’re veering dangerously into anti-capitalist territory now because the idea that profit is the only legitimate driving force of innovation is a central tenet of capitalism and it’s a sad thing for all of us but that’s beyond the scope of this article.