A Perspective on the Patent Wars over Mobile Technology

A Perspective on the Patent Wars over Mobile Technology

There has been an epidemic of patent litigation between major players in the mobile technology market. Some increase in patent litigation was to be expected as various technologies have converged in the design of smartphones and tablet computers. But the sheer multitude of patents involved in these suits has made it difficult to arrive at any firm conclusions. In this Analysis, Catriona Collins looks at the latest cases and sheds light in this complex area. She writes:

     Last year several publications, including the New York Times and the Wall Street Journal, published charts depicting the epidemic of patent litigation between major players in the mobile technology market. For instance, Apple and Motorola are battling each other over numerous patents in both federal district courts and the International Trade Commission, and Microsoft, HTC, Nokia and other companies involved in the smartphone market are parties in multiple patent infringement suits. Some increase in patent litigation was to be expected as various technologies have converged in the design of smartphones and tablet computers like Apple's IPad. Apart from technology convergence, commentators have speculated on what else could be behind the rash of lawsuits between these major competitors and the likely outcomes. But the sheer multitude of patents involved in these suits has made it difficult to arrive at any firm conclusions.

     The casual observer might conclude that patents are of critical importance to technology companies. But even as these companies spend many millions of dollars wielding their patent portfolios as weapons against each other, paradoxically, they are also lobbying both Congress and the Supreme Court to reform patent law in such a way as to limit the strength of patents. The long-pending patent reform legislation, resuscitated recently by the Senate, is largely driven by lobbying from the technology sector. Various aspects of that legislation are designed to rein in the power of patents, including the enactment of a post-grant opposition procedure in which the validity of an issued patent can be challenged before an administrative tribunal of the United States Patent and Trademark Office. Amicus briefs filed with the Supreme Court recently in Microsoft Corporation v. I4I Limited Partnership [131 S. Ct. 647 (U.S. 2010)], as well as a March 2011 report by the FTC, help to shed further light on the current role of patents in the mobile technology arena.

Briefs By Microsoft, Google, HTC and Apple in the I4I case

     Under the Patent Act, 35 U.S.C. § 282, issued patents enjoy a presumption of validity. This places the burden of proving invalidity on the challenger. The issue currently before the Supreme Court in the I4I case is what standard of proof should be applied in assessing whether the patent challenger has met his burden of proving invalidity. Under current Federal Circuit case law, courts apply the relatively high "clear and convincing evidence" standard of proof in deciding whether a patent has been proved to be invalid. Microsoft, with amicus brief support from Google, HTC, Apple and others advocates the lower "preponderance of the evidence" standard of proof for patent invalidity.

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