Patent Armageddon


It seems like every week there is a launch of a new smartphone on the world stage followed closely by posturing and legal threats for some form of patent breach. More often than not, the bigger story is legal maneuverings and machinations of the manufacturers and the ever increasing desire to be successful in court rather than in the marketplace.

Apple and Samsung are the current poster children for trying their hand at legal roulette. It is probably unnecessary to go through all the drama but we have reached the point now where it seems everyone and their friend are suing each other for infringements on designs, technology and software. The nasty dial is being ratchet-ted up as the manufacturers are going for broke - rejecting conciliation and out of court deals. Strap yourself in, this wild ride is not ending soon.

Legal action is now part of a marketing strategy and the Australian legal system is being bogged down in a tit-for-tat exchange that has no signs of slowing down. The ante is being upped as the patent disputes spread from tablets to phones. Apple successfully sought an injunction on the sale of the Samsung Galaxy Tab 10.1 which is now being countered by an attempt by Samsung to return the favour on the iPhone 4S.

Throughout the world, manufacturers are testing how much they can influence market share not through competition on price, features or brand positioning but their ability to disrupt supply of devices by any means necessary.

Battle lines were drawn up in March 2010 when Apple filed against HTC. Since then other manufacturers using android OS on flagship devices have come under scrutiny including LG, Motorola and most recently Samsung. The fun doesn’t stop there though with Microsoft applying pressure with threats of their own. Google is the ultimate focus of the attack but so far very little action has been directly applied to them - I am not including Oracle’s java suit as this is tangential to the devices themselves.

No one seems to be sitting still, least of all Google, who is aggressively buying up IP through acquisitions such as Motorola Mobility and some deals with IBM. Patent stockpiling is not new but it is concentrating particularly densely around mobile technology. The pile of cards is building higher and higher.

The usual modus operandi of waiting until an infringing product becomes successful and then going for penalties and damages is evolving now into a marketing tool that helps you interfere with competitor launches.

I’m not going to go into the right and wrongs of who copied what. I have a pretty dim view on the whole thing. What I am seeing now is a sophistication in using the legal processes, the target choice, special cross licensing deals designed to create alliances and posturing in the media without showing actual proof being co-ordinated in a strategic manner. The whole thing is being turned into a game. Legal shenanigans like this rarely have any real positive impact other than giving some lawyers a +1 level of Patent Wizardry.

Regardless who wins in court, the consumer loses, the app developer loses, the retailer loses and the mobile market as a whole loses through reduced competition, reduced co-operation and  an ever encroaching aura of fear that whatever you do in the mobile space someone is out to get you.

I have a strange feeling that the smartphone makers will look back at this time with 20/20 vision and regret opening the patent can of worms.