Litigation Highlights Problems in U.S. Approach to Technology Patent Issues, Experts Say

Members of the information and communications technology sector most often talk about problems caused by patent trolls, companies that stockpile patents and then seek licensing fees, said Marvin Ammori, a fellow at the New America Foundation and head of a law firm that has represented Google and other Internet companies. There has also been a great deal of press and public scrutiny of patent wars, infringement lawsuits between Apple, Samsung, Google and other major industry players, he said. Patent trolls have been particularly problematic for start-ups, Ammori said. As a member of the steering committee for Engine Advocacy, a coalition that represents start-ups in Washington, Ammori has heard stories about start-ups needing to take time away from actually bringing their products to the market to deal with litigation brought by patent trolls. “My take is that the patent system is fairly broken when it comes to technology patents, far more than it is in other areas,” he said.

Patent troll litigation has wasted a great deal of time and money that could be utilized elsewhere, but it is only a symptom of the problems in the U.S. patent system, said Jorge Contreras, an associate professor at American University’s Washington College of Law. “By and large, they are simply doing what the law allows them to do,” he said. “They're collecting patents issued by the Patent Office, you can buy and sell these patents, and you can sue on them. So they're not breaking any laws, they're not doing anything wrong per se, as detrimental as their activity might be.” The real problem exists in the number and breadth of technology-related patents the U.S. Patent and Trademark Office issues, Contreras said. More than 25 percent of the 8.3 million patents issued in the U.S. since 1792 have been issued since 2000, according to the Advisory Committee. The U.S. allows people to patent not just inventions, but also ideas related to an invention -- and that causes trouble in the marketplace, Contreras said.

Neither patent trolls nor patent wars are a recent phenomenon, said Adam Mossoff, a professor at the George Mason University School of Law. A similar instance of a multiparty patent war came in the 1850s via the Sewing Machine War, in which the owners of patents of major sewing machine components sued each other for infringement, he said. The Sewing Machine War had “all of the issues that we have today -- massive litigation, multiple parties, multiple venues, complex technology,” Mossoff said. Similar patent wars have occurred with every “technological leap forward,” including airplanes, disposable diapers and radio, he said. Mossoff said he believed smartphone and tablet innovation would continue despite recent litigation, and that Apple and Samsung will resolve their legal disputes by entering into patent licensing agreements.

Much of the dispute in the recent Apple-Samsung lawsuit centered on design issues -- whether Samsung had infringed on Apple’s iPhone design features, Contreras said. Such problems are easy to design around, he said. “Samsung undoubtedly already has people working at factories and design shops to come up with new designs that do not infringe those design patents,” such as the shape of an icon, Contreras said. “That’s easy for a software designer to do in a day.” Standards-essential patents -- patents that focus on key components like USB plugs, Wi-Fi connectivity and Bluetooth capability -- can’t be designed around, he said. Most problematic are utility patents -- those on ideas for actions you take on your phone like tapping on the screen to zoom in, Contreras said. Utility patents are difficult to design around and are the cause of the most problematic litigation, he said.