Patents the smart option in mobile skirmishes

IN the past few days Motorola has announced that it is suing Apple under several of its smartphone patents. Normally, a clash of such technology titans might raise eyebrows, but not in this market, and not now. In recent months there has been a spate of patent lawsuits between the big players, which was kicked off a year ago when Nokia sued Apple. Since then, Apple has sued Nokia and HTC, Kodak has sued RIM and Apple, and Microsoft has sued Motorola to name but a few.

In some ways this is not surprising. The smartphone market is exploding rapidly and in expanding markets a fight for dominance is almost inevitable. The market has not yet settled into the international standards and patent pools which have governed so-called “dumb” mobile phone technology.

In that industry, mobile technology patents have been pooled and licensed en bloc for an agreed royalty in order to restrict the royalties that manufacturers would have to pay if they had to license competitors’ technology individually. For smartphone technology this is not yet widely the case.

From a legal point of view it raises questions of whether the patent system actually works for fast-moving industries like the smartphone one. When you consider that it typically takes three to five years or more for a patent to be granted, some argue that the technology will be obsolete long before it is patented. So are they obsolete?

Not at all. Although a patent may originate from innovation in a device which has a life-cycle measured in months, a skilled patent attorney will make sure that the patent will be far more wide-ranging than a single product. For example, a patent can actually protect the basic technical concept which is used in a whole string of future products.

It may be several years since Apple first launched its iPhone but the multi-touch technology this introduced will still be used for some time yet. Similarly, Dyson patented the vortex system for its vacuum cleaners many years ago but was still litigating the patent at the end of its 20-year life. Patents have power.

Also, patents can be used as a weapon. Having a portfolio of patents means that if somebody threatens to sue over an infringement, a firm can retaliate by threatening to withdraw some of its own patented products in a way that will damage the litigious firm. The end result is that the smartphone firms often decide that peaceful co-existence is better than a war that may end up with its own product being withdrawn.

The likelihood, then, is that most of these cases will settle before the phones in our pockets start to lose features. What is harder to predict is who will be the winners in this industry.

Technology we are now seeing being launched in smartphones has been in development for some years, and manufacturers will have known for some time what direction their competitors are going in. Patent applications are published 18 months after they have been filed, so that everybody can read about the inventions and plan their own development and patent strategies accordingly.

Still, all we know is that hidden technological gems are out there, which will evolve into the apps and programmes that consumers decide they can’t live without. These will have been patented years ago, alongside hundreds that will prove to be commercial dead-ends. And the firms who patented the winners are unlikely to regret it.

Adrian Samuels is a partner in the Electronics, IT & Communications Group at Dehns, a Patent and Trade Mark Attorney.