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By Tony Dutra
Three out of four panelists at an Oct. 16 Congressional briefing agreed that the smartphone patent wars show that “the patent system is broken,” but none was optimistic that Congress can or will do anything to fix it.
For a Congress that entertained patent system constituencies' battles for many years before passing the America Invents Act, there was little appetite, it seemed, for continuing the fight--especially considering the AIA has not even been fully implemented--on the highly controversial question of whether software patents should be banned.
Perhaps most telling was a final observation from the audience: “Pity the poor staffer [listening to this briefing] who has seen this debate for a couple of years now. All the experts in patent law can't agree.”
The session, “Will $Billions in Patent Lawsuits Kill Smartphone and Tablet Innovation?,” was held under the auspices of the Congressional Internet Caucus Advisory Committee, though no members of the caucus attended.
Eric M. Hinkes, legal policy fellow with the advisory committee moderated a panel comprised of:
• Marvin Ammori, principal with Ammori Group, Washington, D.C., who the caucus described as a “leading First Amendment lawyer and internet policy expert”;
• Jorge Contreras, professor of law at American University, Washington, D.C.;
• Adam Mossoff, professor of law at George Mason University, Arlington, Va.; and
• Rob Pegoraro, a former Washington Post journalist now a freelance contributor to USA Today, Discovery News, and other publications.
“Recent high profile smartphone court cases have consumers and policymakers deeply troubled that courts will strangle the incredible pace of mobile innovation and competition,” Hinkes began. “The number of smartphone patent lawsuits in multiple countries and jurisdictions around the globe is dizzying and could threaten to keep the best new mobile phones off the market.”
Ammori, also a member of the steering committee of an entrepreneur advocacy group, Engine Advocacy, was most convinced of the threat, though Contreras and Pegoraro were not far behind.
Ammori said that startups complain that they must take time away from building products to hire legal help, for fear of being sued. “The patent system at the moment is fairly broken when it comes to technology patents,” he said.
Contreras said that the problem is in the broad scope of the claims being allowed by the Patent and Trademark Office. He faulted patent lawyers for expanding what software engineers have actually discovered by seeking “claims over any idea that may come up related to their inventions. … [The broad scope] creates confusion and uncertainty in the marketplace,” he said.
As an example, he pointed to the Apple patents asserted against Samsung in the U.S. District Court for the Northern District of California, one of which is on the “pinch-to-zoom” feature common to smartphone users. Contreras said that patent was not about the underlying technology. “It's about the idea of pulling fingers apart,” he said. “Those, I think, are problematic, too broad, too difficult to design around.”
Pegoraro blamed what he called “the half life of all these stupid software patents we're stuck with,” pointing to patents granted by the PTO after the mid-1990s rulings by the U.S. Court of Appeals for the Federal Circuit allowing software patents. “If you talk to people in Silicon Valley, they hate the patent system,” he said. “They're just hoping they're not going to run aground.”
Only Mossoff, a patent law historian, defended the patent system generally and tolerance for litigation, even if it appears excessive at this time, specifically.
“Don't panic,” a phrase borrowed from The Hitchhiker's Guide to the Galaxy by Douglas Adams, was his opening line and generally the theme of all his comments.
He pointed to similar “sky is falling” complaints over the patent system with sewing machine technology wars in the mid-19th century and a rousing debate over pharmaceuticals about 100 years ago, with “Judge Learned Hand saying the same things as we're arguing about today.”
He insisted that the smartphone litigation will eventually result in settlements, possibly including a patent pool. “This is not a new phenomenon,” Mossoff said repeatedly. “Let the lawsuits continue and stop signaling that the legal ground will change and be uncertain.”
He was particularly focused on that last point, that as Congress continues to consider more and more patent legislation, businesses will be less and less willing to innovate for fear that their property rights will be taken from them if the legislation, however unlikely, finally passes.
The same split on the panel was evident when Hinkes asked whether the America Invents Act would help.
“After eight years and a lot of back and forth, the AIA turned out to be pretty uninspiring,” Contreras said. “You can see the amount of compromise that went into these provisions. The AIA is a small baby step forward.”
Ammori claimed that he and the other panelists tried unsuccessfully to get someone else to defend the legislation.
Mossoff did not so much defend the legislation as ask for time to let the reforms play out. He noted that the first-inventor-to-file provisions, along with the prior user defense and “a much more muscular post-grant review procedure,” have yet to be implemented.
He asked, sarcastically, “There are no data yet and we're already talking about changing the patent system more?”
It was unclear how the other three panelists expected their concerns to be addressed, but none expected Congress to solve what they perceived as problems.
“I don't have that much faith in complex government intervention and complex legislation,” Ammori said.
Instead, he appeared to expect help from the courts, pointing to recent quote by Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit: “It's not clear that we really need patents in most industries.”
Pegoraro asked courts to shift costs to those who file lawsuits without much hope of success, such as is attempted by H.R. 6245, the Saving High-Tech Innovators from Egregious Legal Disputes Act of 2012, or SHIELD Act.
But he appeared almost frustrated in saying, “If you ask Congress to do nothing, you will probably have your wish granted.”
More information on briefing at http://www.netcaucus.org/events/2012/mobile_patents/
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