Patent Wars: Guarding the Open secret

Please read him as him/her.

Not long back, I stumbled upon this URL that showed who is suing whom in the technology industry. To see some of those companies, whose products we all love, to be involved in such legal brawl was sure not an inspiring thing to me. Last month in his interview with All Things Digital, Apple CEO Tim Cook summed up the whole scenario as a pain in the ass. In this blog I have attempted to get a handle around the current ‘patent situation’ in the tech industry (mostly around the mobile space) and imagine why it is a difficult problem to solve.

Let us start with the basics. Why a patent? The intuition of a patent is to provide a commercial incentive to the creator who is willing to disclose his idea in complete detail. By making his idea public, the inventor creates a possibility of new ideas that could be spawned (from the original) and the commercial incentive he gets in return is a legal monopoly to monetize his idea in the market for a limited period of time.  How does this work? For an idea to be patented, it needs to be first patentable (novel & non-obvious to start with), which are applied by the inventors at the Patent Office (USPTO for instance), subsequently verified and approved by them. Broadly, a patent application has 2 components – claims and the specifications. The ‘Claims’ part talks about the scope of the invention and the ‘specifications’ part describes the technique involved around meeting the scope. Each claim should strive to be specific. It can be broad but not generic. When a particular ‘claim’ is implemented in full in another product without the consent of the patent holder using any technique, it can be called an infringement. The catch here is that for an infringement to occur, at least one claim in the patent needs to be implemented in full. This is precisely where it gets difficult to prove an infringement and this will be clear in the next few paragraphs.

Any new invention (product or a service) is most likely to be a unique combination of some existing features (features that are already present in this world) and new features.  Each feature is equivalent to a ‘claim’ in some patent. For this invention to be free of any infringement, for each existing feature there should be a consensus in some form with the original patent holder for including that feature as part of the current invention. With this knowledge, let us look at the various scenarios that are alleged around.

Here is a classic infringement allegation – a novel patented feature found in another product without the consent of the creator. The novel feature that I will quote here is the ‘data-tapping feature’ (FOSS Patents) that we find in smart phones (iphone). This is an invention that marks up addresses or phone numbers in an unstructured document like an email, to help users bring up relevant applications like maps, dialer apps, which can process such data. Apple filed this complaint against HTC (Android), which was ruled by ITC (International Trade Commission) in favor of Apple in Dec 2011. HTC had to either drop this popular feature or find a workaround and HTC chose to workaround this.

In the US, the legal monopoly offered for a design patent is 14 years and for a utility patent it is 20 years. What if a feature/claim becomes so common and quickly evolves as a standard, acquiring enough mindshare that it becomes part of the infrastructure? These features become ‘standards and essentials’ and once this state is reached, these inventions are FRAND (Fair, Reasonable And Non-Discriminatory) pledged by the creators with a license fee. Again the catch here is ‘fair’, which is very subjective and plays a crucial role when one’s direct competitors own these patents. Kodak has alleged patent infringement against Apple and HTC relating to their patents on Digital Imaging Technology. Another instance is Nokia alleging Apple to infringe into its patents on 3G, GSM, which was finally settled by Apple.

An interesting combination of the above two occurs when 2 inventions allegedly overlap. A classic example of this would be some of the allegations between Samsung and Apple. Apple alleged that certain Samsung’s smart phones have the same “look and feel” (called a trade dress in the IP world) as their own products. In another context, Samsung alleged that Apple infringed into its W-CDMA (standards & essentials) patent. Cross-Licensing each other’s patent to the other party is one way these conflicts could be resolved.

Defensive Patent strategy is where companies go out and acquire patents to help protect them from possible lawsuits from other companies. A famous example would be when Google announced its plan to buy Motorola Mobility in 2011 to protect its Android platform from its competitors (mainly Apple). An aggressive variation of this is a Patent Troll, which is to go out and buy patents with an intention to sue others.

Patent Pending is another clever strategy, wherein the creator releases his product after filing a patent that is not issued yet. He observes competition’s response, refines the patent to trap the competitor to infringement.

How does one defend?

The alleged infringer would typically defend his stance trying to prove the patent to be invalid. One way is to prove the invalidity is claiming that the invention was indeed obvious at that point in time (when the patent was issued) and the other way is by citing a prior publication or an art invalidating the novelty of the issued patent.

So, coming back to my original question – Why is this a difficult problem to solve?  I’ll try answering this by splitting this into 2 sub-questions – (1) why is an infringement inevitable? And (2) why will it be difficult to spot an infringement? The answer to the first question lies with a fundamental difficulty the human mind has in dis-possessing a good idea after experiencing it. In this information age, to innovate and differentiate has become mandatory for any business to survive. Companies are going to find it challenging to ignore innovation that is happening around and may end up indulging in creative workarounds/alternates. The answer to the second question lies with another fundamental difficulty.  Anyone other than the alleged creator will never know for sure if the creation was inspired or copied. Inspiration is important for the very advancement of science, while copying may not be. This necessitates any patent framework that we attempt to build be designed such that it assumes ‘inspiration’ when in doubt. Doing it the other way will defeat the whole purpose of the framework (remember the intent of a patent framework is also to make progress).

In a competitive environment (tech industry for example) where the stakes are high, patenting one’s invention (to detail out the idea along with the how part) is actually a risk. Every idea needs an ‘engineering magic’ to materialize to a unique user experience and if that ‘engineering magic’ is hard to guess, most of the companies would retain the ‘how part’ as a trade secret without patenting it (coca cola is a classic example). It is only when the ‘engineering magic’ is guessable that companies opt for a patent to prevent someone from copying and I think ‘visual’ user experiences are relatively guessable. While the intent of the patent framework was to promote the progress of science and useful art, the current use case for the same in my opinion is completely different. I anticipate the patent framework will continue to be used as a defensive weapon at best, used to intimidate, distract the alleged infringer and delay his progress.