Technological giants are waging patent wars in courtrooms all over the world. Yet these are like a chess game which probably will not affect the local consumer, says Antonio Ghio.
The first mobile phone I had put my hands on weighed like a brick. It was the Nokia 101, launched in 1992. Fast forward by a couple of decades and the mobile world has revolutionised and reinvented itself multiple times.
Fierce battles are raging in courtrooms on issues such as the bounce-back feature, music and video synchronisation, interfaces and the famous slide-to-unlock feature- Antonio Ghio
Sometimes I 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 20 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 extended to computer programmes, is simply to ensure that your intellectual property (on which a company would invest heavily by way of research and development in its 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 who argue that patents simply monopolise innovation.
Patents and their ability to foster and protect innovation is 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 Winston Churchill’s six-volume opus The Second World War into a technological context. Legal disputes have hit all parts of theglobe with multi-billion dollars claimedin damages.
While 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 the smartphone market.
By mid-2012, Apple and Samsung were still involved in over 50 lawsuits in more than 10 countries. Fierce battles are raging incourtrooms on issues such the bounce-backfeature, music and video synchronisation, 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.
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 inwhich the technological giants wage war are not identical.
While on August 24, 2012, Apple won an important ruling against Samsung in front of a jury in California which awarded over $1bn (€777m) 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. While patents are recognised and can be dulyregistered under Maltese law, their utilisation locally has been very limited and has mostly revolved around pharmaceutical patents or the local exemptions that exist in relation to generic pharmaceuticals.
Many complain that when it comes to technology, a monopoly for 20 years is ridiculous. Remember the Nokia 101? I thought so.
In much the same way, in 20 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 andintroduced.
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 incentives for innovationin all industries except chemistry andpharmaceuticals by eliminating start-uplitigation 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 Nokia 101 is sleeping.
Dr Ghio is a partner at Fenech and Fenech Advocates, specialising in ICT Law (www.fenechlaw.com). He also lectures in ICT Law and Cybercrime at the University of Malta.