Joff Wild

Having discovered, rather belatedly, a few weeks ago that there is an evolving market for patents out there, the New York Times has returned to the subject again with a long article entitled The Patent, Used as a Sword. It’s actually a very good, well-balanced piece and certainly worth the time it will take to read it. You will not agree with everything it says, but what it is not is yet another exercise in NPE-bashing. In fact, they do not get much of a mention. Instead, the focus is on the big corporate players in the smartphone wars and the other, smaller companies that have been caught up in the crossfire – sometimes to their advantage, other times to their detriment. 

Particularly interesting to this reader is the insight provided into how and why Apple’s patenting strategy around the iPhone emerged and, intriguingly, Google’s seeming desire to make the smartphone wars go away: “Earlier this year, Google proposed a cease-fire, according to people familiar with the conversations. And when Google withdrew its Motorola suit last week, it was widely seen as a peace gesture.” Apple, however, is not playing ball:

But Apple has been hard to pin down, said one person from Google who was not authorized to speak publicly. “Sometimes they’re asking for money. Then they say we have to promise to not copy aspects of the iPhone. And whenever we get close to an agreement, it all changes again.

“Our feeling is they don’t really want this to end. As long as everyone is distracted by these trials, the iPhone continues to sell.”

This is something we have looked at before: that Google would like Android to be left alone is no great surprise, but following its victory in San Jose against Samsung, it’s neither is it a surprise that Apple is not so keen. What Tim Cook and co have to think about, though, is that right now Apple is in a position of extraordinary strength. It only takes a couple of decisions to go the wrong way for that to change. Unless the thermonuclear destruction of Android really is the (completely unrealistic) aim, at some stage a deal with Google will be done. It is going to take very fine judgement to decide when that moment is.

Anyway, let’s put that to one side and think about something else. A tweet put out by the NYT linking to the article reads “Software patents, increasingly used as weapons by tech companies, may be stifling innovation”. But, I wonder, what is the evidence for this claim? The article talks about the length and cost of litigation in the US, and the damage this does; but that in and of itself is not the fault of software patents – litigation in the US is expensive and does take a long time; full stop. The article also talks about the grant of overly-broad patents; but if that were the case, you would expect them to be struck down when they did come before the courts or following re-examinations. When patents are upheld, on the other hand, then surely it demonstrates that they are being granted according to US law and that the system works. So, maybe the issue is the law itself; after all, it is easier to obtain software patents in the US than in most other countries - perhaps this ultimately causes the problems.

But, here’s the rub. Although it is much harder to get and then effectively enforce patents for software in most of the rest of the world, we are not seeing a tidal wave of software-related innovation outside the US. It’s not as if you can purchase software-based products and services in Europe and Asia that would blow the minds of American consumers were they able to get their hands on them. If patents really are a break on innovative activity, given the supposedly low costs associated with software development surely we would expect to see a huge difference between what is available in countries where software patents are relatively easy to obtain and litigate successfully, and those in which they are not. But, as I say, that does not seem to be happening. In fact, it is probably the case that when it comes to innovation and software, the US is a global leader.

Maybe the Americans would be even further ahead without software patents. But, then again, maybe they wouldn’t be; perhaps, instead, patents give software companies and those that finance them the confidence to invest. What we do know for certain is that the US has got to where it is now with the system as it is. Before any fundamental changes are made, the emphasis surely has to be on those who advocate reform to show how things would be better. One thing is for sure, they cannot look to relatively software patent free jurisdictions to demonstrate a potentially brand new, brighter tomorrow. That, I suggest, is pretty significant.