“[O]ne of the most effective ways to respond to a threatened patent assertion is to be able to assert patents of your own,” says Google’s patent lawyer, Tim Porter. Porter made that statement in response to a question about why Google was still buying up patents. Despite Google’s recent patent acquisitions, Porter believes “the current system is broken.” Overly-broad software patents, granted during a salad days of software patent grants prior to 2007, says Porter, are fueling litigation. Despite Google’s concerns over software patents, the company paid $12 billion to acquire Motorola and its portfolio of over 17,000 patents. From Porter’s perspective, Google has no choice, but to join in the patent arms race. “But the concern” says Porter, “is that the more people get distracted with litigation, the less they’ll be inventing.
Horacio Gutierrez, deputy general counsel for Microsoft, sees things a little differently. Gutierrez sees Google as “standing on the shoulders,” and reaping the benefits, of predecessors like Microsoft. To Gutierrez, patents are what drive innovation. Microsoft has already negotiated ten license deals with Android partners. For 2012 alone, Microsoft is poised to earn nearly $444 million in Android license fees. You need patent protection, opines Gutierrez, to encourage companies to the spend the millions of dollars, and years of effort necessary to develop new technology.
Up until recently, Apple and Google were in completely separate markets, and the relationship between them congenial. Once Google launched its iPhone-killer Android, the gloves came off. In the last month, Apple, along with Microsoft and Research in Motion, outbid Google to acquire $4.5 billion in patents from Nortel. Instead of suing the leviathan Google directly, Apple is suing the smaller companies that make Android hardware, like HTC. In its lawsuit against HTC, Apple alleges HTC’s android phone is too close to the iPhone. Google is assisting Android partners like HTC, even selling a patent portfolio to HTC, that HTC used to sue Apple. Apple is also attacking Google at its heart, releasing the audible search engine application Siri, that experts say will soon spread across nearly all Apple platforms. Before his death, Steve Jobs told his biographer that Jobs would spend his last dying breath, and every penny of Apple’s $40 billion in cash to destroy Android. Jobs felt Google stole the Android from Apple, and Jobs was willing to go “thermonuclear” to right the perceived wrong.
As the players continue to wage lawsuit after lawsuit in the mobile platform patent arena, and Congress continues to tweak its rules on allowing software patents, small inventors may end up the losers. The USPTO has come a long way since granting such infamous patents as the Amazon “one-click” patent, but the system still has a few bugs. To address those bugs, and the unprecedented expanse of patent infringement litigation, Congress passed a major change to United States patent law. The Leahy-Smith America Invents Act, (AIA) will add some consistency to the mix, thwarting patent trolls and spurring innovation. Unfortunately, what promises to makes the AIA work more smoothly for behemoth corporations, may harm smaller inventors, who lack the resources necessary to take advantage of the protections the AIA affords. With many provisions of the AIA not taking effect until next year, however, by the time we learn the true cost of Congress’ latest effort to ease the battle of the Titans, it may be too late for many small inventors.