The United States’ patent system — and, indeed, patent systems around the world — have been sharply criticized for years, particularly in the software arena. Patents are intended to give inventors exclusive rights to technology they develop, in exchange for public disclosure. With a patent, inventors can prevent anyone from selling, manufacturing, distributing, or using their invention without permission, yet the broader industry benefits from knowledge of the technology and, potentially, the ability to license it from the inventor. Although terms vary around the world, patent exclusivity usually lasts at least 20 years. That’s less than a copyright, but long enough for inventors to realize significant commercial gains from their innovations.
Right now, patents are a very hot topic in mobile technology. Major companies like Apple, Microsoft, Samsung, Google, Oracle, HTC, Kodak, RIM, and many more — as well as non-practicing entities (a.k.a. patent trolls) — are at each other’s throats in patent infringement cases. What’s more, the companies are scrambling to acquire still more patents to solidify their negotiating positions. Ten or hundreds of billions of dollars — and potentially the future of many mobile platforms — hang in the balance.
Google has famously claimed “bogus” patents are being used to attack its Android operating system. Now, in an interview with the San Francisco Chronicle (here and here) Microsoft’s deputy counsel for intellectual property Horatio Gutiérrez argues assertions of those same patent claims are actually proof the system is working.
Is either company right, and can anything be done to prevent abuses of the patent system?
Microsoft has made no bones about pursuing patent licensing deals with device makers building Android equipment. The company recently inked its tenth Android licensing deal and has sued Barnes & Noble claiming its Android devices violate Microsoft patents. The net result? Microsoft is earning money from sales of a growing pool of Android devices, including devices from the likes of HTC, and told the Chronicle. “In doing that, they have really stood on the shoulder of companies like Microsoft who made all these billions of dollars in investments.”
Microsoft argues many of those features are critical to these device’s operating systems and functionality—such as the ability to synchronize content with cloud-based systems, business services, and home computers. However, Gutiérrez also notes that seemingly innocuous things add up: one patent at issue in Microsoft’s suit against Barnes & Noble involves graphics that appear during Web page loads. While such a feature might seem minor or unworthy of patent protection, Gutiérrez argues they’re an important part of a device’s experience. “Those patents [cover] individual features that have been created in a particularly inventive way by Microsoft.”
Gutiérrez fully acknowledges that patents cover methods for achieving things, not the final outcome of the innovation or even the idea itself. Gutiérrez also openly notes that different inventors can come up with different ways of achieving the same goal, and each method could be independently patentable. In other words, Microsoft isn’t claiming its patents cover all methods of synchronizing mobile devices with servers, computers, or services: just particular ones. In its opinion, several of those methods are included in Android.
“Licensing is not some nefarious thing that people should be worried about,” Gutiérrez said. “Licensing is, in fact, the solution to the patent problem that people are reacting so negatively about.”
Not surprisingly, Google sees Microsoft’s position differently. “Patents were meant to encourage innovation, but lately they are being used as a weapon to stop it,” wrote Google’s's chief legal officer David Drummond in an now-infamous screed this August. Drummond accused companies like Oracle, Apple, and Microsoft of attacking Android using both their own patents along with those acquired through purchases in an effort to curtail Android’s market momentum, raise the ultimate cost of Android devices for consumers — or, at the very least, participate in Android’s growing revenue stream. “Instead of competing by building new features or devices, they are fighting through litigation,” Drummond wrote.
Drummond acknowledges that a smartphone might involve as many as a quarter million patent claims, and asserts the majority are “questionable.” Curiously, Drummond never says Android doesn’t violate patents, but he does imply any patent violations are inconsequential or related to “bogus,” “old,” or “questionable” patents that ought not to have any bearing on Android and Google’s efforts to innovate.