Patent minefield... high profile patent rows are a worry for developers. Photo: Greg Bakes
The Apple versus Samsung patent battle has moved to the next stage of litigation tomfoolery with a US jury finding that Samsung has wilfully infringed on more than one of Apple’s smartphone patents. The damages have been set at just over $US1 billion. What the eventual outcome and damages will be is really yet to be determined since appeals will follow.
This battle is being fought in many jurisdictions but the California ruling has implications for the Android platform as a whole. Apple has certainly demonstrated a willingness to take all and sundry to court in order to protect its product and block its biggest threat.
This is open patent warfare and there does not seem to be an end in sight as eventually everyone will have to pick a side, pay up or fight.
In the big end of town, patent portfolios have long been pooled as a form of protection against other large competitors. This mutually assured destruction has been a feature of technology companies trying to keep each other in check.
One of the problems with the current scenario is that patents in the software world are being awarded to sometimes trivial and vague “inventions” or even to inventors that have no intention of actually implementing the invention.
In a recent blog post, Minecraft creator Markus “Notch” Persson remarked: “...one of the biggest problems with patents; there is no good safe way to find out if any idea you come up with is patented or not. Most other crimes require intent, patent infringement does not.” The amazing rags to riches story of Minecraft has meant that its creator has become a juicy target for patent roulette and this might be one of the things that keeps Persson awake at night. Persson’s company Mojang has itself been recently in a trademark tussle with Bethesda over the use of the term “Scrolls”.
Persson’s comments, while not directly related to Apple or Samsung, have sat with me uncomfortably. The entertainment factor of the likes of Apple, Microsoft and Google fighting each other internationally in high-profile court battles can overshadow the issues for single or small development studios. The more these tactics become standard practice, the more individual developers have to pay attention and the more fear, uncertainty and doubt can be leveraged against them in the guise of the patent bogyman.
The validity of a patent is usually determined after the fact by the courts. The heart of the concern is that small developers who are industriously working away on their products and services could have this lingering fear that they may in the future face a patent claim. Even searching against the database of patents may turn up nothing concrete depending on how specific the patents in that area are and how diligent their search is. Ignorance, in this case, is not bliss.
The reverse is true as well. You have managed to patent one of your inventions but until it is confirmed in court, how certain can you actually be? For how long are you willing to fight and how much are you willing to spend to keep the fight going if it does get there?
Even prior art defences are not a sure thing as so much hinges on interpretation. More and more software developers have to become aware of what their influences are.
It seems that the prevailing wisdom is that the best defence is a good offence. Patent first and hope that in the future if anything happens the courts see it your way. This strategy only adds to the volume of patents that a young developer may be infringing on. Adding to the uncertainty is that patent claims don’t have to be enforced in an immediate timeframe (up until they expire), unlike trademarks. So a law action is as much about strategy as it is about timing. The ability to sell and trade patents and create cross-licensing deals also means that competitors to your products and services may one day acquire patents that were previously held by a neutral entity and use them solely against you.
In other words, it is no longer just about competing on who has the best product, brand and marketing; there is also the possibility of using the courts and patent system as a market force. In reality, it has probably been this way for a long time but the implications for small development studios who may fall foul of large multinationals' patent portfolios is huge. They are looking on at the Apple and Samsung case with rapt interest.
When you start a new project, how much has the current patent climate affect what and how you develop?
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