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All about the patent wars

Last updated on: July 11, 2012 12:20 IST

The course of the patent wars is almost certain to remain tortuous, writes Rajni Bakshi.

LawbooksApple and Google got a judicial rap on the knuckles recently for indulging in 'silly' patent battles.

A United States Circuit Court judge has declared that both these firms and other tech firms are indulging in a ridiculous abuse of intellectual property law.

This is a dimension of how patent wars are playing out within the commercial world -- which is a different dimension of copyright fundamentalism, which has been covered earlier in this column.

Apple and Google had counter-sued each other in a quarrel about their smart-phone patents.

On June 22, in a ruling that has excited much comment, US Circuit Judge Richard Posner threw the case out.

A trail would be pointless, said the judge, because neither company has shown if and how they have been harmed due to patent infringement by the other company.

Google's Android system is at present the world's best-selling mobile operating platform.

A Reuter report quoted opponents of Apple as saying that the iPhone and iPad maker is using patents too aggressively in its bid to stamp out the competition.

Judge Posner's decision is being viewed as a blow for Apple, since a ruling against Motorola would have given it an advantage in the smartphone market against Android.

A commentator on GigaOm.com described the recent court ruling as a potentially 'watershed moment for a US patent system that has spiraled out of control'.

GigaOm is a blog site about the interface between technology and business.

Since the ruling dismissed the case with prejudice the litigants cannot now file cases to fight over the same patents.

Why should just one such ruling matter? This is largely because of Posner's stature.

Richard Posner is a towering figure of the legal and academic world in the US.

He is regarded by some as America's greatest living jurist.

Apart from serving on the 7th Circuit Court of Appeals Posner also teaches at the University of Chicago law school and is a prolific writer.

His book includes 'Law, Pragmatism and Democracy' and 'The Crisis of Capitalist Democracy'.

Posner's ruling has comforted critics who have said for some time that the patent system is being abused by the grant of frivolous patents, as well as the use of patent law by companies to acquire monopolies extending over twenty years.

In a blog he contributes to, Posner called the US patent system 'dysfunctional'.

Apple attorney Matthew Powers reportedly said in court that the company is not seeking to prevent the sale of Motorola phones.

Instead, Apple wanted an injunction requiring Motorola to remove Apple's patented technology from Motorola phones within three months.

Posner's reasoning is that it would be more in the public interest for Motorola to pay Apple a compulsory royalty but forcing Motorola to adopt inferior technology would not benefit consumers.

Reuter reported Posner as saying that it cannot be assumed that because someone has a patent, 'he has some deep moral right to exclude everyone else' from using the technology.

He went on to describe the United States' as being in a state of 'chaos' and in need of basic reform.

In another recent case, this one between Motorola and Microsoft, the judge lamented that the court was being 'played as a pawn in a global industry-wide business negotiation.'

The deeper issue, of course, is the nature of the regulation and laws.

That is why there is growing pressure by a wide range of individuals and groups to counter laws that foster what they call copyright fundamentalism.

Lawrence Lessig, a major authority on copyright law and cyber law, recently said in an interview that the rules that would make sense are losing out to rules which make more dollars.

Lessig, who is director of Harvard's Edmond J. Safra Center for Ethics, is also a passionate advocate of Net neutrality.

Copyright wars have taken the shape they have, said Lessig, because the short-termism of the industry is not allowing sensible answers to emerge: ". . . so we have had a completely useless war which has benefited no one (save the lawyers-as-soldiers in that war).

"We've lost a decade of competitive innovation in ways to spur and spread content in ways that would ultimately benefit creators, because the dinosaurs owned the lobbyists."

Within a week of Posner's ruling in yet another case Apple succeeded in getting a pre-trial injunction against the sale of Samsung's Galaxy Nexus phone.

So the course of the patent wars is almost certain to remain tortuous.

But, perhaps rulings like Posner's have an impact of stirring the system and raising awareness in favor of long term changes.

Rajni Bakshi