Patent Wars

The first mobile phone I had put my hands on weighed like a brick. It was the Nokia 101, launched in 1992. Fast forward to a couple of decades and the mobile world surely has revolutionized and reinvented itself multiple times.

Sometimes I do wonder whether there was any patent filed in relation to the Nokia 101. If the answer is positive, then, in light of the fact that the minimum level of protection for patents is twenty years, some of those patents might still be around.

The fundamental use of a patent, which can also be granted for technological inventions and sometimes can also be limitedly extended to computer programs, is simply to ensure that your intellectual property (and on which a company would invest heavily by way of research and development in their respective products) cannot be used by your competitors thereby generating a market advantage which would assist your market share. It is all a question of protecting innovation even though many are those that argue that patents simply monopolise innovation.

Patents and their ability to foster and protect innovation is surely a hot potato and it appears that there is no real end in sight. The rise of smartphone and tablet technology has intensified such patent disputes in the past few years greatly and could be the perfect subject for anyone wanting to transpose Churchill's six volume opus The Second World War into a technological context. Legal disputes have hit all parts of the globe with multi billion dollars claimed in damages.

Whilst most if not all smartphone manufacturers such as Apple, Google, Samsung, Microsoft, HTC, Motorola and Nokia have been somehow plaintiffs or defendants in patent litigation, most of the widely reported cases nowadays revolve around Apple and Samsung who between them control more than half of the smartphone market.

By mid-2012 Apple and Samsung are still involved in over 50 lawsuits in more than ten different countries. Fierce battles are being raged in courtrooms on issues such the bonce-back feature, music and video synchronization, interfaces and the famous slide to unlock feature.

Patent wars are truly global wars but are fought one battle at a time even though many fronts will be open at any given point. Surely, the outcome of a battle in one jurisdiction does not mirror the result in another and this goes to prove that the different juridical and legal backgrounds of the countries in which the technological giants wage war are not identical. Whilst on the 24^th of August 2012 Apple won an important ruling against Samsung in front of a jury in California which awarded over 1 billion dollars in damages to Apple, Samsung were the victors in another patent case against Apple filed in a district court in Tokyo which decided that Samsung did not breach Apple's patents.

Our endemic market will most probably remain immune to these patent disputes, unlike all past military conflicts where Malta played a key tactical role in the domain and control of the Mediterranean basin. Local consumer volumes do not make any patent dispute registered in Malta viable or the prelude of a successful action where your competitor will end up very bruised. Whilst patents are recognised and can be duly registered under Maltese law, their utilization locally has been very limited and has mostly revolved pharmaceutical patents or the local exemptions that exist in relation to generic pharmaceuticals.

Many complain that when it comes to technology, a monopoly for twenty years is ridiculous. Remember the Nokia 101? Just as much as in twenty years people will find it hard to remember the iphone4 or the Galaxy SIII. Some have advocated reducing the term of protection for technological patents considerably even though I think this will take decades to be agreed on and introduced.

James Bessen, Fellow at the Berkman Centre on Internet and Society at Harvard and an authority in the field of patents and their relationship with research and innovation, claims that elimination of the patent system would increase the incentives for innovation in all industries except chemistry and pharmaceuticals by eliminating startup litigation costs. Bessen also holds that the costs of patent litigation exceed their investment value especially in the fields of software and technology. So the question is simple. Why do these technological giants still have a go at it? No doubt, patent attorneys are not complaining and are having a thrill explaining the slide to unlock feature in legal terms to a jury or judge in some part of the world.

In the meantime, somewhere, lost in a drawer and covered with past memories of another life, my candy bar Nokia 101 is sleeping.