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“We think that these patent wars are not helpful to consumers. They’re not helpful to the marketplace. They’re not helpful to innovation.” These are the words of Pablo Chavez, Google’s Public Policy Director, who, questioned the utility
of the current patent system at the Technology Policy Institute on Monday. Google has taken a similar stance regarding software patents in general, stating that they are “gumming up the works of innovation.”
The patent wars between major technology companies have been raging for years. One battle, the suit between Apple and Samsung, has been raging all summer, and just went to the jury this week. Because the jury’s decision could have such a major impact on the technology world, Judge Koh had been imploring the parties to settle, but to no avail. Both Apple and Samsung were willing to take their chances rather than give in to the other.
In closing arguments, Samsung’s lawyer warned that a finding of infringement could stifle competition for years and argued that the alleged infringements, such as shape, battery life, screen size, and so forth are “benchmarks,” which competing technology companies inevitably match when designing similar products for the same marketplace. Apple argues that Samsung’s (and thus Google’s) phones and tablets infringe on the iPhone and iPad by copying their “look and feel.” The proceedings grew so adversarial that it led Judge Koh to proclaim, “I don’t trust what any lawyer tells me in this courtroom.”
Earlier this summer, Judge Posner, too, expressed his frustration with the state of patent litigation after tossing out Apple’s suit against Motorola. In an article published by the Atlantic Monthly, Judge Posner explained that companies owning enough patents can completely monopolize their corner of the market–a fact of the industry that has given rise to defensive patenting and patent trolling.
Companies file defensive patents not to prevent infringement, but merely in order to avoid being accused of infringement in the future. Patent trolls acquire patents not in order to to produce new technologies, but only to ensnare future producers who unwittingly infringe. Neither of these strategies promote innovation, as the patent system is designed to do. Rather, Judge Posner laments, they stifle creation and competition, and they add greatly to the administrative and judicial costs of running and policing the patent system. These are the same concerns raised by other judges.
So, what’s to be done? Posner and other critics find it difficult to advocate for any singular, concrete answer. Few want to discard the patent system entirely, though some, including possibly Google, seem to believe we can do without software patents. The one thing these critics do agree on is that the patent system is broken.
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