Why The Answer To The Smartphone Patent Thicket Is Not A Patent Pool

from the sorry,-but-no-thanks dept

Fri, Oct 29th 2010 8:46am — Mike Masnick

We recently wrote about the incredible patent thicket in the smartphone space. For some reason, in the course of a few days, about ten different publications all created a very similar graphic about "who was suing whom" in the smartphone space for patent infringement. Unfortunately, most of those graphs had the wrong data and/or did not include non-practicing entities, who make up some of the most serious (and expensive) lawsuits in the space, and are certainly an important part of understanding the thicket. We created our own graphic here:

Anyway, with so much attention being paid to this patent thicket, of course it would only be a matter of time until someone popped up with a favorite "solution" to patent thickets: "patent pools." The WSJ Digits blog has an article about a forthcoming paper that compares the smartphone patent thicket to the sewing machine patent thicket in the 19th century, and suggests that the same solution used then could work now: just have everyone create a patent pool to share their patents.

We've heard this before, and explained before why patent pools aren't a really good solution. In fact, two years ago we pointed to new research showing evidence for why that famed sewing machine patent pool actually did more to hinder innovation than to encourage it. As we explained at the time:

First, companies scramble to get patents that can be included in the patent pool (rather than focusing on actually innovating in the market and understanding what the market wants). Once the pool is truly established, patenting decreases, because it's just not worth it to compete. After the patent pool dissolves, then others finally get back into the market. Second, because the patent pool locks in the effective "standard" early in the process, it might not actually be the best technology. In their research, Lampe and Moser found that this is exactly what happened with the first patent pool concerning the sewing machine. It "shifted the direction of innovation to an inferior technology... which was known to be significantly less robust, and unsuitable for mass production."

Then, once they're in the patent pool, they become anti-competitive: suing any upstart that tries to innovate and is not a member of the patent pool. So, effectively, rather than innovating, they use the patent pool to block any competition. Finally, once the patent pool is in place, the companies involved decrease their own pace of innovation, because they've basically just blocked out the competitors. Thus, they don't need to keep innovating at the same pace.

Are patent pools better than the legal jumble of lawsuits from the graphic above? Maybe. But are they the best solution out there? Absolutely not. Instead, a better solution would be to just let the market compete on the merits of the products and let the market decide, rather than focusing on any monopoly rights that will exclude innovators.

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Filed Under: competition, innovation, patent pool, patents, sewing machine, smartphones

16 Comments

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A Dan (profile), 29 Oct 2010 @ 9:18am

Collusion?
How are patent pools not considered collusion? The companies seem to be conspiring to keep new companies from entering the market by limiting it to the (relatively) small group of existing players.
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Hulser (profile), 29 Oct 2010 @ 9:26am

Re: Collusion?
From the linked article...

"Though anti-trust legislation today would likely render a smartphone patent pool an impossibility"
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A Dan (profile), 29 Oct 2010 @ 9:41am

Re: Re: Collusion?
Even if that's true of a smartphone patent pool, it still seems like MPEG-LA shouldn't be able to do it in other cases.
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TtfnJohn (profile), 29 Oct 2010 @ 9:43am

Shut down a new industry?
Too look at the chart I can be forgiven for suspecting that we have a new industry here.

We'll call it the circular lawsuit industry. Follow enough of those lines around in the chart and you'll start to find that everyone is suing everyone else and being sued by everyone else.

In a deep recession this is a growth industry for all those surplus graduates from lower level law school so we need to support it.

Mind you very little of all this activity actually produces a real object that can enter the real economy to be bought and sold.
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TtfnJohn (profile), 29 Oct 2010 @ 9:44am

Re: Shut down a new industry?
oh heck, lost my sarcasm on and sarcasm off tags around the middle paragraphs.
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David Sanger (profile), 29 Oct 2010 @ 10:22am

For those interested here is the actual paper:
A Stitch in Time: The Rise and Fall of the Sewing Machine Patent Thicket by Adam Mossoff, George Mason University School of Law
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1354849
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C., 29 Oct 2010 @ 11:46am

Prior art?
1928 cellphone. Could further complicate all these legal claims.
www.youtube.com/watch?v=ygxVg1rqFQE
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Lawrence D'Oliveiro, 29 Oct 2010 @ 2:50pm

If A Patent Is A Monopoly, Then A Patent Pool Is A Cartel
As Boldrin & Levine pointed out, the idea that patent holders are willing to pool their patents gives the lie to the claim that patents are an essential incentive to invention.
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Lawrence D'Oliveiro, 29 Oct 2010 @ 2:53pm

Re: Prior art?
She’s not talking. She’s just holding something to the side of her head. A poultice for a toothache, perhaps.
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Anonymous Coward, 29 Oct 2010 @ 6:30pm

I read this interesting bit of history some years ago. I thought to myself at the time, this seems like a clear case of antitrust conspiracy. Keeping competition out of the market.

The problem today, is the overwhelming number of bad patents that would never stand up. A patent pool actually depends on the presumed validity of the patents therein. This has been called into question since the introduction of process patents. So, at some point, companies that hold patents which are undoubtedly valid, would have to acknowledge the likely invalidity of patents held by the likes of MS or Apple. Nokia, for example, holds many patents, most are for hardware some for software, they have a fairly high degree of quality to their leases. It would seem unjust for them to exchange legitimate research for the asinine patents the USPTO has been granting for the last 12 years.
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BearGriz72 (profile), 30 Oct 2010 @ 11:22am

Graphic Key?
So the Green Hexagons are the NPEs Right?
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staff, 30 Oct 2010 @ 5:26pm

incentive and reward
"After the patent pool dissolves, then others finally get back into the market"

HELL-O-O! The point of patents is to give the creator a limited monopoly as an incentive and reward for innovating.
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Anonymous Coward, 31 Oct 2010 @ 9:04am

Re: incentive and reward
Oops, you seem to have lost some context there. Let me help:

"First, companies scramble to get patents that can be included in the patent pool (rather than focusing on actually innovating in the market and understanding what the market wants). Once the pool is truly established, patenting decreases, because it's just not worth it to compete. After the patent pool dissolves, then others finally get back into the market."

(Emphasis on what you missed)

So, basically, what's being said is that yes, eventually the patent pool will be dissolved and others will be allowed into the market, but only after a large period of intellectual stagnation. Also, the members of the pool will fiercely stop any external innovation before it can happen and *gasp* compete with them. Hum...actually, isn't this strikingly similar to how a cartel works?
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Anonymous Coward, 31 Oct 2010 @ 8:23pm

Re: Re: Prior art?
Hearing aid.
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Anonymous Coward, 31 Oct 2010 @ 8:24pm

Re: incentive and reward
Oh good, you've discovered selective quoting now.

Let me try.

Staff says: "I'm stupid."

Oh, what? I created that quote by removing all the letters in between the ones I wanted? Oh well.
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