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Smartphones Become Hot Player in the Game of 'Global Patent Wars'

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Smartphones Become Hot Player in the Game of 'Global Patent Wars' CHICAGOLAWBULLETIN.COM FRIDAY, SEPTEMBER 28, 2012 Volume 158, No. 191 Smartphones become hot player in the game of ‘global patent wars’ n the current game of “industrial application” (utility). they include “patents that “global patent wars,” the These general standards, cellphone makers must use to most prominent player these however, are interpreted under GLOBAL IP communicate over specified past few months may well be domestic law. Thus, technologies telecommunications networks.” the smartphone you carry in patented in one country are not The growing scope of the Iyour pocket. Keeping an accurate guaranteed patent protection in smartphone wars has raised scorecard would be a full-time other countries. DORIS international concerns to such an job. Multiple lawsuits based on More problematic, infringe - extent that the International different technologies, different ment standards are also ESTELLE Telecommunications Union will versions of the ever-changing governed by domestic variations. LONG be holding a special roundtable in smartphone, different forums One country’s infringing conduct Geneva on Oct. 10 to address the and different countries require may well qualify as acceptable in issue of RAND licensing commit - special wikis to keep track of another. Of the diverse lawsuits Doris Estelle Long is a law professor ments and SEP litigation. Even even the major developments. involving smartphone technology and chairwoman of the intellectual before this conference, the Among the current players are filed around the globe, the property, information technology and present international focus on Nokia, Apple, Microsoft, American, German and privacy group at The John Marshall licenses for infringing SEPs is Samsung, HTC, Motorola and Australian courts have granted Law School. She has served as a already showing signs of Google. These patent wars are Apple’s requests for injunctions consultant on IPR issues for diverse expanding beyond “essential” deadly serious. At least at barring the sale of certain U.S. and foreign government agencies, technology. present, they are also uncomfort - Samsung smartphones. By including as attorney adviser in the Since the U.S. Supreme Court’s ably unpredictable. contrast, a British court rejected Office of Legislative and International decision in eBay v. MercExchange Affairs of the USPTO. She can be The patent thickets that the request. Although the tech - reached at [email protected]. in 2006, American courts have companies created to protect nologies in these cases are not increasingly denied injunctive their ability to leverage smart - always identical, the economic relief in patent cases. Members phone technologies are now the impact of these decisions, by tion caused by such relief: “[I]t of the European Union have weapons launched against rivals limiting the loser from further does not have the right to begun to show a similar reluc - in an escalating global battle that marketing its smartphone, is compete unfairly, by flooding the tance. Like pharmaceutical is re-defining the communica - identical — and potentially market with infringing products.” patents, smartphone and other tions marketplace. It will also ruinous. In August, a California One of the reasons these breakthrough technologies may shape the scope of patent protec - jury awarded Apple $1.3 billion patent wars are so hard-fought is find that victory has a downside tion afforded breakthrough tech - damages in its patent suit against because the economic rewards in this current global patent nologies internationally. In this Samsung. Within a day, promise to be so great. IHS game — relegating such patents second battle, the losers may well Samsung’s stocks plummeted 7.5 iSupply said smartphones will to compulsory licenses or, even be the patent owners themselves. percent. Other technology constitute 50 percent of the worse, permitting uncontrolled The present international companies connected with global mobile phone market by importation of gray-market patent system grants innovators Samsung’s smartphones, 2013. As new generations of versions. The thrill of the a 20-year exclusive monopoly including Google (Android) and smartphone technology emerge, present game may well cost over their inventions in exchange HTC, saw similar declines. By the owner of patent rights in patent owners their ability to for their public disclosure via the contrast, Apple’s stocks rose 1.9 what becomes the industry deny rivals low-cost licenses for registration process. This disclo - percent (or just about $13 billion). “standard” gains tremendous their innovative technologies. sure gives rivals the ability to Patent injunctions can also leverage in setting the price of The longer the smartphone design around another’s disrupt consumers’ lives. future licenses. Internationally, global patent war game continues, invention. It also gives them the Concerned about the “harm that holders of “essential” or the more likely breakthrough tech - opportunity to make the business an injunction might cause to “standards-related” patents nologies will be added to the list of decision to use another’s consumers who can no longer (SEPs) generally provide licenses essential patents, like those for patented invention and dispute buy preferred products because on “reasonable and nondiscrimi - pharmaceuticals, for which open the validity of the patent later. their sales have been enjoined,” natory” terms (RAND) to avoid access is becoming an uncomfort - The increasing litigation directed in June, Judge Richard A. Posner antitrust liability. RANDS are able economic reality for patent to smartphone technology rejected Motorola’s request for designed to eliminate the “hold- owners. demonstrates the popularity of injunctive relief against Apple’s up” value of essential technology. Today, smartphones, tomorrow the second model, fueled by the infringement of its smartphone Yet in the constantly moving green technology? Maybe it is inconsistent treatment of patents technology. He considered rules of the global patent wars, time for some hard-headed globally. Such inconsistencies can “harassment of a bitter rival” an new weapons including injunctive economic re-evaluation of the be economically devastating for unacceptable “danger.” relief and import bans are being risks involved in the current the losing side. By contrast, Judge Lucy H. used to pressure would-be users global patent wars. Otherwise, Article 27 of the Agreement on Koh in the same month in the of SEPs to pay a premium for the perception of patents as Trade Related Aspects of Apple/ Samsung case granted these licenses. SEPs are not enablers to innovation will give Intellectual Property Rights the injunction because “the limited to standards adopted by way to the perception of them as (TRIPS) sets the international public interest favors enforce - formal standard-making bodies stumbling blocks — entrenched standards for patentability — ment of patent rights here.” Koh such as the Universal Mobile in international standards that newness (novelty), an “inventive rejected Samsung’s claims of Telecommunications System. remove or at least minimize step” (nonobviousness) and consumer and business disrup - Instead, as Posner recognized, licensing choices in the future. Copyright © 2012 Law Bulletin Publishing Company. All rights reserved. Reprinted with permission from Law Bulletin Publishing Company..
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