DOCSLIB.ORG

Global Antitrust Review Issue 7, 2014

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Global Antitrust Review Issue 7, 2014 The Interdisciplinary Centre for Competition Law and Policy (ICC) GLOBAL ANTITRUST REVIEW ISSUE 7, 2014 ICC Global Antitrust Review A PUBLICATION OF THE INTERDISCIPLINARY CENTRE FOR COMPETITION LAW AND POLICY (ICC) Editors Dr Kadir Bas ([email protected]) Andriani Kalintiri ([email protected]) Eda Sahin ([email protected]) Assistant Daniele D’Alvia Editors Advisory Mr David Bailey, UK Competition Appeal Tribunal Board Mr Christopher Brown, Barrister, Matrix Chambers Mr Manish Das, Freshfields Bruckhaus Deringer Prof Ariel Ezrachi, Oxford University Prof Ioannis Lianos, University College London (UCL) Dr Okeoghene Odudu, Cambridge University All inquiries to: Global Antitrust Review (GAR) Interdisciplinary Centre for Competition Law and Policy (ICC) 67-69 Lincoln’s Inn Fields London WC2A 3JB United Kingdom Tel: + 44 (0)207 882 8122 Fax: + 44 (0)207 882 8223 Email: [email protected] www.icc.qmul.ac.uk Prospective contributors should consult the ‘Guidelines for Authors’ before submitting their articles. © Individual contributors and the ICC, 2014 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form, or by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior permission of the ICC. ICC GLOBAL ANTITRUST REVIEW ISSUE 7, 2014 ICC GLOBAL ANTITRUST REVIEW ISSUE 7, 2014 EDITORIAL BOARD’S MESSAGE 5 ARTICLES Antitrust Paternalism in the ‘Smartphone Wars’ BRANDON D. CHAN 7 The Real Shortcoming of the UK Cartel Offence: A Lack of ELÉONORE MAY 53 Public and Political Support MICHELS Directive 2014/104/EU: In Search of a Balance between the Protection of Leniency Corporate Statements and an CATERINA MIGANI 81 Effective Private Competition Law Enforcement The inadequacy of the European Commission’s Remedies for Microsoft’s Tying Practices in the Microsoft Cases: AYSHA SANAD 113 Casting Doubt on the Suitability of the Commission’s Approach for an Information Technology Economy State Aid in the Banking System: A Viable Solution to the JULIA FLAVIE 137 ‘Too big To Fail’ Problem? COLLINET The Assessment of Selective Distribution Systems Post- CRISTIANA DE FAVERI 163 Pierre Fabre ESSAYS Frederich Hayek’s Contribution to Antitrust Law and its THIBAULT SCHREPEL 199 Modern Application Antitrust Supervision of the Regulatory Activities of Public LUCIE KUNCOVÁ 217 Bodies: One Step Forward, Two Steps Back? CASE NOTE Hospital Exclusivity Contracts: The Impact of Kini v SHIVANGHI SUKUMAR 243 Hiranandani Hospital Global Antitrust Review 2014 5 EDITORIAL BOARD’S MESSAGE In line with the GAR’s commitment to provide a forum for academic debate on matters of international competition law and policy, the 2014 volume consists of contributions discussing a diverse selection of prominent and controversial topics. The exponential growth of information technology in the past decade lies behind the issues discussed in two articles selected for this volume. The competition implications of the ‘smartphone wars’ are the subject of an excellent contribution which advocates for a move towards antitrust paternalism as a solution to the problem. From a different perspective, an article on the remedies imposed by the European Commission in the Microsoft I and II cases criticises their adequacy and stresses the importance of remedy designing as part of developing a coherent competition policy for information technology markets. On a rather procedural note, the 7th volume also deals with questions of competition enforcement. The UK cartel offence is the subject of a very instructive article which identifies the lack of public and political support as its real shortcoming. Furthermore, in view of the recent adoption of the Damages Actions Directive, striking a proper balance between protecting leniency corporate statements and ensuring the effectiveness of private competition enforcement is the difficult question analysed in another informative article included in this volume. In addition to this variety of topics, the role of State aid in the banking sector is also considered in a contribution that examines the use of State aid bailouts as a way of keeping ‘too big to fail’ financial institutions afloat either independently or in conjunction with the Single Resolution Mechanism. Finally, this year’s selection of articles includes an interesting contribution on the potential implications of the Pierre Fabre judgment for the competition analysis of selective distribution systems. This volume is complemented by two enlightening essays, one on Frederich Hayek’s contribution to antitrust law and one on the antitrust supervision of the regulatory activities of public bodies. Finally, this issue concludes with an interesting comment discussing the possible consequences of a recent Indian case on the assessment of hospital exclusivity contracts under Indian competition law. As always, we would like to especially thank both the referees for their time and constructive comments and Prof. Maher Dabbah, the director of the ICC, for his Global Antitrust Review 2014 6 endless support in our efforts. Moreover, we would like to acknowledge Dr Maria Ioannidou’s valuable assistance in preparing this year’s issue. We hope you will enjoy this volume, and we already look forward to receiving excellent contributions from all interested young scholars for the next one. The GAR Editorial Board December 2014 Global Antitrust Review 2014 7 Antitrust Paternalism in the ‘Smartphone Wars’ BRANDON D. CHAN* The ‘smartphone wars’ denotes a series of aggressive patent infringement claims brought globally by technology giants notably Apple, Samsung, Motorola, HTC and Nokia against each other as they battle for market share in this lucrative industry. This article revisits the perennial patent hold-up problem where at the heart of these claims lies the potentially anti-competitive application for an injunction that seeks to prevent the use of standard essential patents (SEPs) in the manufacture of smartphone products. The stakes are arguably high as the grant of injunctive relief by the courts is apt to produce an exclusionary effect on competitors in the market. An interlocking issue involves the prior agreement by patent holders to license their SEPs to any entity on fair, reasonable and non- discriminatory terms (FRAND). However, in view of the elusive determination of FRAND, this article argues for a move towards antitrust paternalism as a solution that will end the smartphone wars. As the smartphone wars approaches a finale, the European Court of Justice now stands on the verge of a landmark antitrust ruling in Huawei v ZTE. I. Introduction The ongoing smartphone wars have attracted great interest and controversy amongst key players in the technology industry, IP practitioners, judges and antitrust regulators at both ends of the transatlantic divide. The most recent skirmish involves the European Commission’s (Commission) conclusion of a competition challenge following Google Inc.’s Motorola Mobility’s attempt to seek an injunction against Apple Inc. due to an alleged infringement of the standard essential patent.1 In addition, ZTE Corporation, a Chinese telecommunications * LLB (London), LL.M (University College London), LL.M (Queen Mary, University of London), C.L.P. (Malaya), L.P.C. (London). The author is the recipient of the Queen Mary School of Law Prize Award for the best student in Competition law LL.M specialism, 2013/2014 edition. Antitrust Paternalism in the ‘Smartphone Wars’ 8 giant files a new antitrust complaint with the Commission against Vringo Inc., challenging the latter’s licencing practices following the failure of the parties to agree a FRAND rate.2 Indeed, in the European Union (EU), this continuous series of patent infringement claims brought by these technology giants has attracted substantial competition concerns both from the Commission, Europe’s powerful antitrust regulator, and the Court of Justice of the European Union as the injunctions threaten to impede innovation and inhibit competition. On a wider jurisprudential basis, the legal battle for patent supremacy has also attracted the interests of IP practitioners and competition lawyers as this phenomenon characterises the classic interface between intellectual property and competition law. For decades, legal scholars and judges have often debated the merits of the intellectual property law framework especially patent law in granting exclusivity to the patentee to utilise and exploit its patent for profits.3 This interface gains its dynamic feature when one considers the often-perceived contradictory objectives of competition law which proscribes monopoly of businesses to the detriment of consumers. As competition law seeks to protect the competitive structure of the market,4 it seems conflicting that there exists at the same time a legal regime which not only encourages but grants exclusivity to an undertaking to exploit its patent rights. With such rights in place, competition is potentially inhibited as patentees are in a position to extract exorbitant royalty rates or simply refuses to license the patents to its competitors. On its face, such exclusive rights facilitate the patentee in wiping out potential competition amongst its rival competitors. Although the drive towards innovation is an important value that has often been cited as the primary justification for having a legal regime protecting patents, also known to be ‘hard’ intellectual property rights, the extent to which exclusivity actually
Load more

Recommended publications
  • Does Smartphone Patent Enhance Or Detract the Information Society?
    Does smartphone patent enhance or detract the information society? PANG, Ya-Fang. Available from the Sheffield Hallam University Research Archive (SHURA) at: http://shura.shu.ac.uk/20774/ A Sheffield Hallam University thesis This thesis is protected by copyright which belongs to the author. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. Please visit http://shura.shu.ac.uk/20774/ and http://shura.shu.ac.uk/information.html for further details about copyright and re-use permissions. I Collegiate Learning Centre | Collegiate Crescent Campus Sheffield 810 23P 102 044 779 6 ProQuest Number: 10702877 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 10702877 Published by ProQuest LLC(2017). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 Does smartphone patent enhance or detract the information society? Ya-Fang Pang A thesis submitted in partial fulfilment of the requirements of Sheffield Hallam University for the degree of Master of Laws by research June 2014 Abstract Functionality, simplicity, appearance, and the price are the influencing factors when consumers are choosing a phone.
    [Show full text]
  • The Impact of Patent Wars on Firm Strategy: Evidence from the Global Smartphone Industry
    Organization Science Articles in Advance, pp. 1–20 ISSN 1047-7039 (print) ISSN 1526-5455 (online) https://doi.org/10.1287/orsc.2016.1092 © 2016 INFORMS The Impact of Patent Wars on Firm Strategy: Evidence from the Global Smartphone Industry Yongwook Paik Olin Business School, Washington University in St. Louis, St. Louis, Missouri 63130, [email protected] Feng Zhu Harvard Business School, Harvard University, Boston, Massachusetts 02163, [email protected] trategy scholars have documented in various empirical settings that firms seek and leverage stronger institutions to Smitigate hazards and gain competitive advantage. In this paper, we argue that such “institution-seeking” behavior may not be confined to the pursuit of strong institutions: firms may also seek weak institutions to mitigate hazards. Using panel data from the global smartphone industry and recent patent wars among key industry rivals, we examine how smartphone vendors that are not directly involved in patent litigation strategically respond to increased litigation risks in this industry. We find that as patent wars intensify, smartphone vendors not involved in any litigation focus more of their business in markets with weaker intellectual property (IP) protection because of institutional arbitrage opportunities. This strategic response is more pronounced for vendors whose stocks of patents are small and whose home markets have weak-IP systems. Our study is the first to examine the relationship between heterogeneity in national patent systems and firms’ global strategies. It provides a more balanced view of firms’ institution-seeking behavior by documenting how they make strategic use of weaker institutions. Keywords: patent wars; patent litigation; intellectual property (IP) enforcement; patent thicket; smartphone; platform-based markets; platform competition History: Published online in Articles in Advance November 21, 2016.
    [Show full text]
  • New Battle Lines in the Patent Wars?
    The Catholic University of America, Columbus School of Law CUA Law Scholarship Repository Scholarly Articles and Other Contributions Faculty Scholarship 2021 Fintech: New Battle Lines in the Patent Wars? Megan M. La Belle Heidi Mandanis Schooner Follow this and additional works at: https://scholarship.law.edu/scholar Part of the Intellectual Property Law Commons LABELLE.SCHOONER.42.1.2 (Do Not Delete) 1/13/21 10:37 AM FINTECH: NEW BATTLE LINES IN THE PATENT WARS? Megan M. La Belle† & Heidi Mandanis Schooner† Historically, financial institutions have relied on trade secrets and first-mover advantages, rather than patents, to protect their inventions. For the few financial patents that were issued, conventional wisdom was that they weren’t terribly interesting or important. In our 2014 study on financial patents, we showed that banks were breaking from past patterns and increasingly seeking patent protection. We explained that financial institutions were primarily building their patent portfolios as a defensive measure—i.e., to protect themselves from infringement suits. Indeed, the finance industry successfully lobbied Congress to include provisions in the America Invents Act of 2011 that made it easier to invalidate financial patents through administrative review. Yet, two significant developments call for a revisit of our 2014 study: first, the rise of fintech and, second, the recent $300 million verdict in the first bank-on-bank patent infringement suits—United Services Automobile Association (USAA) v. Wells Fargo. This paper explores how the rise of fintech has changed the purpose of patenting among banks, and what a possible fintech patent war would mean for the future of both the financial and patent systems in this country.
    [Show full text]
  • The Technical Challenge Facing Software Inventions
    Inside IP Venner Shipley’s Intellectual Property Magazine Autumn/Winter 2012 The technical challenge facing software inventions Further developments on the law relating to SPCs Broad terms and class headings - has “IP Translator” taken away trade mark protection? What’s inside? The technical challenge facing software inventions – page 4 Pawel Piotrowicz brings some clarity to the issues surrounding defining technical character in patents for computer-implemented inventions. Further developments on the law relating to SPCs – page 7 Following on from our report in the Spring / Summer 2012 issue of Inside IP on decisions relating to the allowability of SPCs, Tim Russell details further recent developments on the same issue. Broad terms and class heading – has “IP Translator” taken away trade-mark protection? – page 9 Kate Szell indicates that it might be time for businesses to review European trade mark portfolios following a decision by the CJEU which could restrict the scope of existing trade mark registrations. A fashionable monopoly – Christian Louboutin v Yves Saint Laurent – page 11 Julia McFarlane details the US Court of Appeal’s decision on protecting single colours as trade marks by the fashion industry G1/10 – correcting errors in granted European patents – page 13 Sian Gill reports on how a recent decision of the Enlarged Board of Appeal of the EPO has altered options for correcting errors in granted patents. Feeling used? Genuine use of a European Community trade mark – page 14 The Advocat General has issued guidelines on what constitutes genuine use of a CTM ahead of a decision by the CJEU. David Birchall discusses the implications.
    [Show full text]
  • Smartphone Patent Wars Escalate
    JURISDICTION REPORT: US —PaTENTS SMARTPHONE PATENT WARS ESCALATE Paul J. Sutton Sutton Magidoff LLP Patent litigations multiply: The number of smartphone patent “ [I]NTELLECTUAL PROPERTY PORTFOLIOS, infringement litigations filed in the US is growing. Multibillions of dollars INCLUDING PATENTS, ARE BEING AMASSED are at stake in this relatively young industry. The warring players in what to some resembles a patent chess game, include Apple Computer, Inc., AND ARE BEING USED AS WEAPONS BY HTC Corporation, Nokia Inc., Motorola USA, Microsoft Corporation, MANUFACTURERS TO SOLIDIFY AND/OR Sony Ericsson, AT&T, Samsung, Sanyo, LG, Research in Motion Ltd. IncreASe tHeIr mArKet SHAre.” (RIM), Google Inc. and the members of Google’s Open Handset Alliance (OHA). With 65 members at last count and growing, OHA is a coalition of companies dedicated to preventing the world of Strategies: Patent litigants are using both the US district courts and smartphones from being dominated by Apple’s operating system (OS). the ITC to do battle with their competitors. As has occurred in the past, intellectual property portfolios, including patents, are being amassed Smartphone defined: The term ‘smartphone’ has come to mean a and are being used as weapons by manufacturers to solidify and/or cellular telephone with built-in applications and Internet access. PC increase their market share. In particular, the use of patent infringement Magazine defines smartphones as mobile computers and litigation is a deliberate strategic initiative. Manufacturers of application delivery platforms that provide digital voice service as well as smartphones are continually mapping and honing their strategies in a combinations of text messaging, email, Web browsing, still and video race to capture the booming market for the next generation of cameras, music and video players, and organisers.
    [Show full text]
  • How the Transformation of Patents from Rewards to Weapons Reveals the Limits of Antitrust
    Plowshares into Swords: How the Transformation of Patents from Rewards to Weapons Reveals the Limits of Antitrust Introduction Patents exist in fascinating opposition to antitrust law by virtue of conferring a legal monopoly upon their owners. Neither the Sherman Antitrust Act nor the Clayton Antitrust Act cover patents. Furthermore, there is no mention of patents in updates to either of these statutes, either. Antitrust has traditionally sought to prevent companies from acquiring too big a share of the market and aims to prevent corporations and market entities from engaging in behavior that otherwise harms consumers.1 Antitrust authorities and enforcers see themselves as the heroic defenders of the consumer.2 Patents and antitrust law have rarely collided outside of heavily- scrutinized pay-for-delay deals struck between big pharmaceutical corporations and their nemeses—generic drug manufacturers.3 These two legal spheres can collide, however, when entities in a given market space compete with each other through patent assertion litigation. The litigation between Samsung and Apple has burned itself into the public consciousness as an example of utilizing patents as a method of attacking one’s market rivals. Of 1 Maurice Stucke, Reconsidering Antitrust’s Goals, 53 B.C. L. REV. 551 (2012). The author notes that four traditional goal of antitrust are “ensuring effective competitive process, promoting consumer welfare, maximizing efficiency, and ensuring economic freedom.” 2 Bill Baer, Remedies Matter: The Importance of Achieving Effective Antitrust Outcomes, 30 No. 1 CORP. COUNS QUARTERLY, ART 4 (2014). The article is interesting for its earnestness and also significant because it gives the reader a glimpse into the minds of the government agents in charge of “policing” various aspects of corporate activities.
    [Show full text]
  • 041024-Feldman.Pdf
    Fall 2013 www.lawtechjournal.com Volume 17, Issue 2 UCLA Journal of Law & Technology THE AIA 500 EXPANDED: THE EFFECTS OF PATENT MONETIZATION ENTITIES Robin Feldman, Tom Ewing, & Sara Jeruss TABLE OF CONTENTS INTRODUCTION ...................................................................................................................................... 1 I. PRIOR LITERATURE .................................................................................................................. 10 II. AIA 500 EXPANDED: METHODOLOGY & DESIGN .............................................................. 16 A. SOURCE OF DATA ...................................................................................................................... 17 B. STUDY DESIGN .......................................................................................................................... 18 1. Existing Data ..................................................................................................................... 21 2. Entity Websites .................................................................................................................. 22 3. Other Factors .................................................................................................................... 24 a. Entity Types ............................................................................................................... 24 b. Case Outcomes ........................................................................................................... 27 c.
    [Show full text]
  • An Analysis of Germany's Bifurcated Patent Litigation System
    Dis cus si on Paper No. 14-072 Invalid but Infringed? An Analysis of Germany’s Bifurcated Patent Litigation System Katrin Cremers, Fabian Gaessler, Dietmar Harhoff, and Christian Helmers Dis cus si on Paper No. 14-072 Invalid but Infringed? An Analysis of Germany’s Bifurcated Patent Litigation System Katrin Cremers, Fabian Gaessler, Dietmar Harhoff, and Christian Helmers Download this ZEW Discussion Paper from our ftp server: http://ftp.zew.de/pub/zew-docs/dp/dp14072.pdf Die Dis cus si on Pape rs die nen einer mög lichst schnel len Ver brei tung von neue ren For schungs arbei ten des ZEW. Die Bei trä ge lie gen in allei ni ger Ver ant wor tung der Auto ren und stel len nicht not wen di ger wei se die Mei nung des ZEW dar. Dis cus si on Papers are inten ded to make results of ZEW research prompt ly avai la ble to other eco no mists in order to encou ra ge dis cus si on and sug gesti ons for revi si ons. The aut hors are sole ly respon si ble for the con tents which do not neces sa ri ly repre sent the opi ni on of the ZEW. Invalid but Infringed? An Analysis of Germany’s Bifurcated Patent Litigation System∗ Katrin Cremersa Fabian Gaesslerb Dietmar Harhoffb Christian Helmersc a ZEW Mannheim b Max Planck Institute for Innovation and Competition c Santa Clara University September 13, 2014 ABSTRACT We analyze the impact of the probabilistic nature of patents on the functioning of Germany’s bifurcated patent litigation system where infringement and validity of a patent are decided independently by dif- ferent courts.
    [Show full text]
  • Lessons from the Smartphone Wars: Patent Litigants, Patent Quality, and Software
    Minnesota Journal of Law, Science & Technology Volume 16 Issue 1 Article 3 2015 Lessons from the Smartphone Wars: Patent Litigants, Patent Quality, and Software Ronald A. Cass Follow this and additional works at: https://scholarship.law.umn.edu/mjlst Recommended Citation Ronald A. Cass, Lessons from the Smartphone Wars: Patent Litigants, Patent Quality, and Software, 16 MINN. J.L. SCI. & TECH. 1 (2015). Available at: https://scholarship.law.umn.edu/mjlst/vol16/iss1/3 The Minnesota Journal of Law, Science & Technology is published by the University of Minnesota Libraries Publishing. Lessons from the Smartphone Wars: Patent Litigants, Patent Quality, and Software Ronald A. Cass* ABSTRACT Commentators, public officials, and scholars have sounded alarms over the smartphone patent wars—hundreds of cases asserting infringement of patents by makers of smartphones and tablet computers—often suggesting broad, categorical “fixes” to problems this litigation reveals. In general, these recoMMendations sweep too broadly, throwing out good claims as well as bad and needed remedies as well as questionable ones. However, calls for attention along two margins promise improvements. One factor, the identity of the enterprise asserting patent rights, already is being used by courts in considering appropriate patent infringement remedies, but its use needs to be refined. The other factor, patent quality— especially in software patents, where the existence of parallel schemes of intellectual property protection exacerbates quality problems—is even more critical to the way the system operates. Addressing the patent quality issue (which is distinct from patent clarity or patent notice) can do more than other reforms to reduce costs without reducing innovation incentives.
    [Show full text]
  • Seeing the Forest Through the Seps
    COVER STORIES Antitrust , Vol. 2 7, No. 3, Summer 2013. © 2013 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. Seeing the Forest Through the SEPs BY JOHN D. HARKRIDER N THE MID-1970 S, THE SOVIET UNION forced the parties to the CPTN/Novell transaction to alter proposed an ostensibly balanced step towards nuclear the terms of their deal to incorporate several protections for disarmament: if the U.S. agreed to ban its Trident open source software, 6 but allowed the Rockstar consortium Ohio-class submarine, the USSR would ban its “anal - to bid for and ultimately acquire the Nortel portfolio. 7 ogous” Soviet submarine. 1 At first blush, this offer The antitrust agencies’ interest in the “smartphone wars” Iappeared to represent a reciprocal approach to reducing the accelerated only when Google, the main driving force behind superpowers’ nuclear capabilities related to submarine- Android, sought to acquire Motorola Mobility—and its size - launched ballistic missiles (SLBMs). able patent portfolio—in an effort to decrease patent imbal - Although many Americans protested against the building ance in the industry and thus deter further attacks on of the Trident submarine, the U.S. Government rejected this Android. The Agencies began to focus on the assertion of offer, and with good reason. At the time, the USSR already SEPs, in particular the alleged risk that suits brought by SEP possessed SLBMs that were more advanced than those in owners seeking injunctive relief would allow them to “hold- the Pentagon’s arsenal.
    [Show full text]
  • Ashley E. Russo* I. Introduction Every Day, All Across the World, Billions of People Use Their Iphone As a Vital Source for Comm
    AN ANALYSIS OF THE FIRST AMENDMENT THROUGH THE LENS OF SOCIAL MOVEMENTS: HOW APPLE’S LATEST IPHONE PATENT CAN CHANGE THE WAY WE RISE Ashley E. Russo* I. Introduction Every day, all across the world, billions of people use their iPhone as a vital source for communicating, gathering information, listening to music, and capturing photos and videos.1 With the swipe of a finger or the touch of a button, billions of people worldwide have the technology in the palm of their hands to capture any moment that they want – whether it be a treasured memory, an Instagram photo of a user’s latest meal, or even a video of a newsworthy story.2 In fact, Americans use their iPhones so often that they may have a tendency * J.D. Candidate, Suffolk University Law School, 2018; Journal of High Technol- ogy Law, Managing Editor 2017-2018; B.A. History & Political Science, Hobart & William Smith Colleges, 2015. 1 See Nick Statt, 1 Billion Apple Devices Are in Active Use Around the World, THE VERGE (Jan. 26, 2016), archived at https://perma.cc/6D54-QRXA (portraying Ap- ple’s latest milestone of having 1 billion active devices throughout the world); see also iPhone X, APPLE (Nov. 3, 2017), archived at https://perma.cc/H8V4-96DM (describing the features and uses of an iPhone X). 2 See Katie Marsal, Apple Touts Iphone 6 as World’s Most Popular Camera in Showcase of Extraordinary User Photos, APPLE INSIDER (Mar. 1, 2016), archived at https://perma.cc/MW6Z-QSF2 (showcasing most popular apps and uses for the iPhone 6 camera); see also Jeff Storey, Q&A: Mickey Osterreicher, NEW YORK L.
    [Show full text]
  • The Use and Abuse of Patents in the Smartphone Wars: a Need for Change
    Journal of Law, Technology & the Internet · Vol. 5 · 2014 THE USE AND ABUSE OF PATENTS IN THE SMARTPHONE WARS: A NEED FOR CHANGE Jessie Yang ABSTRACT The U.S. Patent System was originally developed to help protect an inventor’s novel idea and the market share that idea might generate in an industry, thereby also promoting technological progress. The current patent system, however, is “marked by limitless subject matter [and] lenient public grant” leading to the abuse of patents by the mobile device manufacturing industry. This issue has been underscored by the recent phenomenon known as the “Smartphone Patent War” made up of a number of high-profile cases, such as Apple, Inc. v. Samsung. Against this backdrop, it is important to re-examine the U.S. patent system with respect to smartphone patents, and consider workable alternatives to fighting the smartphone war rather than the current focus on patent litigation, which is costly and inefficient. INTRODUCTION The first smartphone was introduced in 1992.1 Its name was Simon, it had a touch screen, and for $899, its owner could enjoy 30 to 60 minutes of battery life to make calls, fax, e-mail, compute, and even play a game called Scramble.2 Simon flopped in the market not too long after its debut.3 A decade would pass before smartphone production really took off,4 and two decades before consumer ownership reflected the same enthusiasm. As of 2012, however, the United States smartphone industry can finally boast that smartphone usage outrivals that of its less-intelligent “feature” 1. Ira Sager, Before IPhone and Android Came Simon, the First Smartphone, BLOOMBERG BUSINESSWEEK (Jun.
    [Show full text]