Apple Suit Against HTC Highlights Patent Issues

Apple claims that both HTC and Nokia are infringing on its iPhone-related patents with their smartphones. Nokia accuses Apple of infringing on its patents. Motorola is fighting with RIM over smartphone patents. And, Facebook was awarded a patent for the newsfeed. Either patent suits have become simply another business strategy, or the patent system itself is woefully inadequate, or both.

The patent system is a disaster for technology. Granted, it makes perfect sense to have a system in place to protect unique and innovative concepts and ensure that other companies or individuals don’t simply copy ideas derived from the blood, sweat, and tears of other’s research and development efforts. I get that. I agree with that.

There is a breakdown, however, somewhere in the process. The USPTO (United States Patent and Trademark Office) lists five easy steps for acquiring a patent:

1. Search existing patents to ensure the “new” concept isn’t already patented

2. Review the fee schedule to figure out how much money the patent will cost

3. File the application for the patent

4. Check back periodically to see if the patent has been awarded

5. Continue to pay maintenance fees in order to keep the patent in good standing

Let’s begin with step one. There are millions–approaching ten million–patents. Some are utility patents, some are design patents, and some are plant patents (I won’t even bother getting into how or why someone can patent a plant–let’s just say I am pretty sure it has to do with large pharmaceutical companies)–so you can narrow the field somewhat. But, sifting through millions of patents and comparing them to ensure the new patent is unique is a daunting process.

Once the patent is filed, the USPTO still has to examine it, verify that it doesn’t violate or infringe on existing patents, and make sure that it meets the criteria that it invent or discover a new and useful process, machine, article of manufacture, or compositions of matters, or any new useful improvement thereof.

The USPTO received 485,312 patent applications in 2008. It awarded 185,224 of those patents. That means that this government agency was responsible for reviewing over 1,300 patents per day on average, and it awarded almost 40 percent of them.

The sheer volume of patent applications is overwhelming and reviewing and approving them assumes some level of understanding of the concepts and technologies being patented. It’s easy to see how seemingly frivolous patents slip through the cracks, especially when one of the criteria essentially allows you to patent a patent infringement since it’s allowable to patent a “new useful improvement” of an existing patent.

Ron Gula, CEO of Tenable Network Security, agrees “The issue I have with patents is that the vetting process tries to take into account every possible prior patent and prior art. As we generate more and more content, this problem becomes exponentially more difficult. I’ve not seen a solution I like which protects inventor rights, but streamlines this process as well.”

That brings us to Apple, and HTC, and Nokia, and Motorola, and Facebook. Technology companies are all building on the past and present to create the future. None of them can claim to be solely responsible for the mechanisms and technologies their products are comprised of. It is part of the general evolution of technology, and the patent system–while designed to protect intellectual property rights–has devolved into petty, and costly bickering between companies.

While most patents end up being licensed to competitors for a fee–with royalties being paid to the patent holder for the privilege of using the patented concepts or technologies–the fact is that the patent holder does not have to allow it at all.

The USPTO Web site states “The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States.”

In a nutshell, assuming Apple is correct that HTC and Nokia are infringing on its patents, it has the right to simply ban them from making using, offering, selling, or importing the infringing smartphones in the United States. Doing so would seem to be at odds with antitrust regulations, though, since the patent rights imply the authority to monopolize the patented concept.

Technology companies need to have a healthy respect for the fact that they are standing on the shoulders of the past, and building on concepts–many of which competitors came up with. I appreciate innovation and want to see unique ideas and intellectual property protected, but the world of technology patents, and patent litigation as a business strategy seems like a huge mess with no clear winner.

Something should change. I don’t have the answer.