Wired Takes On The Smartphone Patent Thicket And How It Stifles Innovation

from the dumbpatents-and-smartphones dept

Thu, May 13th 2010 8:42pm — Mike Masnick

Back in February, we noted the rapid explosion of patent lawsuits in the smartphone realm, with pretty much everyone suing everyone, and began to wonder if it was even possible to build a smartphone without getting sued. As it continued to play out, it became clear that the smartphone market was a living example of the problems of a patent thicket -- where a new technology is so locked down by patents, as to slow down the pace of innovation in that market -- directly the opposite of the intended purpose of patents. Patent thickets have been demonstrated in many areas, with smartphones just being the most recent.

Wired Magazine has now taken on the issue, with a good article detailing the patent thicket mess in the smartphone space, and why it's a problem. There isn't much new in the story if you're a regular Techdirt reader, but it's an excellent summary of the situation and why it's a mess:

Underlying much of this litigation is a broken patent system that increasingly churns out weak patents, concomitantly strengthening the rights of those who hold them. Patents described in vague, abstract terms are the source of most infringement lawsuits as they provide more leeway for subjective interpretation. Patent examiners grant weak patents because administrative structures are overloaded and understaffed. And in an age of rapid product development, a market niche can be identified and a product manufactured, retailed and retired before a patent is even granted.

The article also discusses the fact that patent litigation storms like this one had been avoided in the past when big companies came up against each other through "gentlemen's agreements" not to sue each other. But that's been flipped around a lot through a combination of non-practicing entities getting big awards, and companies arguing over who's in the stronger position for such an agreement not to sue.

The end result, though? Money that could go towards productive investment, instead is being wasted on litigation. It's exactly the opposite of what the patent system is supposed to do.

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Filed Under: patent thicket, patents, smartphones
Companies: apple, google, htc, nokia

18 Comments

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Anonymous Coward, 13 May 2010 @ 9:06pm

All these patents enable lawyers to come up with new innovative ways to sue each other and make tons of money from the corporations they represent.
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Kurata, 13 May 2010 @ 9:25pm

In my opinion, this is very much like patent trolling.
I mean, patent trolling does not exactly promote innovation as its goal is not even to be competitive but just plainly bothersome to get money.

In the current case, you have patents, you sue your opponent instead of attempting at being better. All this leads to nothing more than destruction, and solely destruction, not even creation.
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Donald J Smiley, 13 May 2010 @ 9:31pm

Obviously WIRED is just a member of the Coalition of PATENT RAPE!!!!!!

Donald J Smiley
555-1234
1432 Shillington Lane, Lobbyist DC
President - Imaginary Organization
Vice-President - Irrelevant Organization
Senior Fellow - Some Shills
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Anonymous Coward, 13 May 2010 @ 9:43pm

Re:
Patent trolling is suing for the sale of of a product or idea/design that you yourself do not sell. So an entity that does not produce and sell anything (as in goods) and yet sues for patent infringement is a patent troll. An entity that does produce products and sues for a patent on something they do not produce or sell may not be a patent troll per se, but they are engaging in patent trolling.

For the most part, I think that any entity that holds a patent and does not produce a product relating to the patent they are holding should quickly have the patent nullified enabling anyone to produce the product without ever worrying about infringement. The nullification should be non revocable, meaning you can't later claim that you want the patent back because you now want to produce the product. The constitution granted congress the ability to grant patents to promote the progress, not to simply hold those patents in hopes that you can sue someone if anyone infringes and succeeds with a product.
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Anonymous Coward, 13 May 2010 @ 9:46pm

Re:
you forgot all those URL's he keeps on having in every post.
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Lawrence D'Oliveiro, 13 May 2010 @ 9:57pm

This Could Be Worse ...
On the bright side, the US is only a small part of the world mobile-phone market, and was never its most innovative part. Other markets like Europe and Asia have always been much more dynamic, and are probably still growing faster.

And of course, US patents don’t apply in those markets.

Coincidence?
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Niall (profile), 14 May 2010 @ 4:43am

Re: This Could Be Worse ...
There was also the rather retrograde billing system in the US, where people paid to *receive* a call (don't know if that still exists). Plus the US didn't seem to get Pay-As-You-Go for forever, which helped drive the popularity of mobile phones in other markets.

We still remember watching a new episode of Buffy and wondering why on earth these teens didn't have mobile phones. Then we realised that it was because they were in a phone-primitive country...
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TtfnJohn (profile), 14 May 2010 @ 6:10am

Re: This Could Be Worse ...
I'd hate to think it is a coincidence but it's likely. Given that patents granted by the USPTO are often routinely granted by the Canadian version we have the same problem up here.

Let's remember too that North America is suffering from some of the worst, most expensive broadband on the planet due to, among other things, the same idiotic pricing we see in the mobile market. I'm not sure about patent thickets on end user broadband devices but in a system that seems to grant a patent for the location and colour of a flashing LED I wouldn't be at all surprised.

Between predatory pricing and patent thickets North America is being, rapidly, left behind in both markets.

ttfn

John
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Anonymous Coward, 14 May 2010 @ 8:18am

techdirt innovation means the copying of other peoples ideas and using a different font on the screen or different shaped buttons. that is true innovation, helping us move forward with clearer fonts and more ergonomically correct buttons. the world would end without such innovations.
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NAMELESS ONE, 14 May 2010 @ 9:54am

quick solution while you sort the mess out
broadband issue is copyright and hollywood wanting 150 year avg terms in the usa and 50 year terms in Canada wanting to have ACTA and 80 year terms upcoming in Canada.

you drop all that in half in next ten years and then to ten years across the board you will see innovation and do same with patents bring it back slowly so the lazy people have time to find tim hortons jobs ( there profits were up so expect them to expand and hire more peeps )
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Anonymous Coward, 14 May 2010 @ 10:01am

Re:
TAM: Making things up as usual.
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staff, 14 May 2010 @ 1:10pm

Sheesh!!!!!!
"Patent Thicket And How It Stifles Innovation"

Figure it out already! If not for patents, no one would bother to develop expensive, risky, and time consuming technologies. Small firms wouldn't because even if they were successful, large firms would just copy and beat them out of the market they created. Large firms wouldn't because they wouldn't want to displace their existing product line and there would be no small firms pushing them. Sheesh!!!!!!
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Anonymous Coward, 15 May 2010 @ 9:26am

Re: Sheesh!!!!!!
Good thing you provide so much imaginary evidence to back-up your demonstrably false claims.
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The Groove Tiger (profile), 15 May 2010 @ 11:33am

Re:
blah blah blah agenda communism death panels the masnick blah.
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Technopolitical (profile), 17 May 2010 @ 5:30am

" and began to wonder if it was even possible to build a smartphone without getting sued."
As I have mentioned elsewhere, in music , some things can always be copyrighted -- Lyric always can.

Melody can be copyrighted , but it makes for great legal fun sometimes ,, as in My Sweet Lord vs. "he's so Fine"

Chords cannot be copyrighted.

With smartphone patents, are there any parallel?

Things , that can be always patented. Things that can never be patented. Things that can sometimes be patented, but are always fotter for legal dispute.

Please answer in as laymans terms as possible
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bon qui qui, 17 May 2010 @ 6:04am

gurl
gurl, i aint got no idea what yu be talkin about. use some english. gurl yu aint makin no sence.
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Technopolitical (profile), 17 May 2010 @ 6:48am

Re: Sheesh!!!!!!
Correct and well stated
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Technopolitical (profile), 17 May 2010 @ 6:49am

Re: Re: Sheesh!!!!!!
Figure it out already! If not for patents,..... Sheesh!!!!!!

that is what is "Correct and well stated"
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