As Software Industry Patent Wars Rage, the Consumer Is Not Without an Advocate

Microsoft’s recent acquisition of a $1 billion chunk of AOL’s patent portfolio, followed hot on its heels by Facebook’s payment to Microsoft for access to a significant part of that portfolio, is just the latest intrigue in what has become a worldwide intellectual property mêlée between the tech giants. No longer a means to an end, technology and software patents are now considered expansionary, strategic assets.

Although intellectual property law exists to encourage innovation and invention, patents have become the one legal way private companies can exercise a monopoly over the market. Oversized patent portfolios and prolonged patent lawsuits translate into less consumer choice and higher prices. Effectively, patents become the end in and of themselves, and no longer a means for supporting innovation.

These lawsuits have caused real concern at the Department of Justice’s antitrust division, where the patent wars have raised the prospect of anti-competitive activities. The DOJ is charged with viewing the market as a whole. For that reason, the Department of Justice has invoked a little-known form of consumer protection in ensuring the Patent Wars don’t put new technologies out of the consumer’s reach.

It has been well publicized that the battles between tech powerhouses like Google, Apple and Microsoft go far beyond the features of their latest devices. As many of these companies continue to focus large amounts of time and treasure in the courtroom, there is a concern that innovation will take a backseat to genuine competition on tech. Since Google’s acquisition of Motorola Mobility last year, things have especially heated up among the three major players — a situation that can only worsen with Microsoft’s acquisition of AOL’s patent portfolio, which is a symptom of a patent “arms race.”

No longer obtained to protect a new technology or a particular state of art, patents are now used in the smartphone arena to block other players from entrance into the arena, or to stop one company from achieving a dominant position.

A patent-centric strategy works extremely well in the software industry because sets of international standards allow our mass communications devices to work together seamlessly. If a company obtains a patent governing one of these standards, or for technology that is widely relied upon (even if not directed to a specific standard), that company can put a chokehold on the market.

Specifically, rival companies have attempted to block Google’s Android operating system and handsets, which Google licenses to other companies for free, while Apple and Samsung have been engaged in a number of lawsuits over handset technology. One such lawsuit resulted in a suspension of iPad and iPhone sales in Germany.

In fact, when so many patents protect vital, standardized technologies with such broad language, lawsuits are certain to follow. And a glut of patent lawsuits can mean licensing deals, which in turn mean higher prices as the costs of production come to include those licensing deals. In a worst case scenario, a licensing deal can’t be reached and the technology is unavailable to the consumer.

And while the lawsuits have played out largely amid corporate attorneys and IP specialists, the consumer isn’t without an advocate as the patent wars rage. As leverage to avoid antitrust lawsuits, the Department of Justice has emphasized a little-known tool to regulate the cost of patent licenses. It can exert pressure to require that crucial patents be licensed under a set of terms known as FRAND (Fair, Reasonable and Non-Discriminatory) terms.

These terms set strict guidelines regarding the costs of licensing and prevent companies holding vital patents from setting exorbitant, unfair prices. For example, the DOJ recently pressured a consortium led by Apple to commit to FRAND licensing when it bought various Nortel and Novell patents. The government tacitly hinted that it would block the acquisition if the consortium didn’t agree to FRAND terms. If the DOJ hadn’t stepped in, the consortium would have been able to exert enormous leverage on the consumer electronics market.

Google is being required to maintain FRAND terms with the patents that it received upon purchasing Motorola Mobility. Google also bought patents from IBM under those terms.

In fact, companies holding patents which are considered to be crucial to a particular standard may be required to license those patents by the relevant governing standards body under FRAND terms.

Some companies do choose to license their patents widely, even without explicit FRAND requirements. Microsoft, for example, has chosen to license its patents widely, having reached licensing agreements with makers of more than 70 percent of the Android-based smartphones sold in the U.S. On the other hand, Steve Jobs famously threatened to do whatever was necessary to force Google to significantly change Android to remove features that Jobs felt were proprietary to Apple, refusing to even consider payment from Google to license Apple’s patents.

It’s likely the smartphone war will end in a variety of licensing agreements and cross-licensing agreements. Whether those agreements result in competitive prices for the consumer depends on how effectively the DOJ wields its “FRAND” sword.

D’vorah Graeser, Ph.D., is the founder and CEO of Graeser Associates International (GAI), an international intellectual property firm specializing in the preparation, filing and prosecution of medical device, biotechnology, pharmaceutical, bioinformatics and software patents. Dr. Graeser is a U.S. Patent Agent and is not an attorney at law; none of the above should be construed as legal advice.

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