The sky is not falling: Navigating the smartphone patent thicket

• Author: Jeffrey I. D. Lewis - Ryan M. Mott
• Position: President of the American Intellectual Property Law Association (AIPLA) and patent litigation partner at Patterson Belknap Webb & Tyler LLP (New York) - Associate, Patterson Belknap Webb & Tyler LLP (New York)
• Pages: 7-10

p. 7WIPO | MAGAZINE

You pick up your smartphone with its cur ved sides (US Patent

No. D618,677), swipe your nger across the screen to unl ock

it (US Patent No. 8,046,721), check email that was “pushed”

to the phone without a request to the ser ver (US Patent

No. 6,272,333), and type a text message usi ng only a few

touches as the phone automatically completes each word you

start to spell (US Patent No. 8,074,172). Guess what? You may

be accused of violating thes e patents or dozens more by us-

ing inventions without a valid lic ense. This can occur wheth er

you are using an iPhone, an Android -type device, some other

smartphone, or even a yet-to-be-named technology.

If you have been following the news, then you kn ow that there

is not a single smartpho ne in the world that has not been ac-

cused of patent infringeme nt. People are concerned. But, fear

not. These smartphon e wars are part of a cyclical technology

event that should not be over-blown.

THE SMARTPHON E WARS

Most of us have been kept out of the smar tphone patent re-

ght, at least when it comes to our pe rsonal day-to-day use.

But to the parties involved, there is a wa r going on – with patent

infringement accus ations being red regular ly at Apple, Sam-

sung, Google, Research in Motion, Microsoft, Nokia, Motorola,

HTC and others. Where there are accusatio ns of infringement,

there are lawsuits.

Some of the warring par ties have taken it quite personally. For

example, Apple’s late founder Steve Jobs was widely quoted as

having said that one HTC smar tphone model was “grand theft”

of Apple’s patented features, including multi-screen touch es,

the use of various alphabets wh en sending messages, and the

infamous swipe-to-unlock featu re: “I will spend every penny of

Apple’s $40 billion in the bank, to right this wrong. I’m going

to destroy Android, because it’s a stolen product. I’m willing

to go thermonuclear war on this,” Mr. Jobs said.

Of course, a smartphone isn’t just a simple, isolated swipe-to-

unlock feature, it is a combination of technol ogical components.

Anyone who contributed a compo nent, or at least has a patent

on a component, is vying for a piece of the huge smartphone

market by suing anyone who has a smar tphone product.

Each patent holder owns an exclusive ri ght to one or many

small features of the smar tphone, and can therefore tr y to

prevent others from manufacturing the smartphone as a whole.

As the numbers of players and patented fe atures increase, the

transaction costs of assembl ing a “completely licensed” smart-

phone become burdensome, because the manufacturer has

to deal separately with the owner of e ach feature or patented

component. Figure 1 offer s a visual representation of just the

lawsuits associated with smartphone patents, ignoring for

instance the various publicly-disclosed license agreements

and other arrangements.

A PATENT THICKET

In the patent world, we sometimes refer to a “patent thicket.”

Figure 1 looks very much l ike a “thicket,” in other words, a

dense grouping of brush or b ranches.

The branching and overl apping intellectual prope rty rights as-

sociated with smartph ones have critics claimin g that the pat-

ent system does not work and is not approp riate for modern

times. They say innovation is hindered – a nd even blocked

– by so many patents. History, however, does not support

this assertion.

As the 19th century Spanish philos opher and writer, George

Santayana, wrote, “those who cannot reme mber the past are

condemned to repeat it.” This quotation is par ticularly apposite

for those who point to the smart p hone wars as evidence that

the patent sky is falling.

THE SKY IS

NOT FALLING:

Navigating the

smartphone patent

thicket

By: Jefrey I. D . Lewis, President

of the Americ an Intellectual P roperty Law

Associat ion (AIPLA) and patent lit igation

partner at Pat terson Belknap Webb &

Tyler LLP (New York); and Ryan M. Mott,

associate, Patterson Belknap Webb

& Tyler LLP (New York)

→