Global Patent Chaos Creates Unwinnable Game for Mobile Tech Giants

NEWS ANALYSIS: It's impossible to tell if anyone really wins in the constant global patent litigation among mobile tech giants, which produces conflicting verdicts, endless appeals and now invalidated patents.

Apple was supposed to have won big in the suit against Samsung in a massive series of claims of patent infringement. This was the apparent result of a jury verdict last August in which there were charges of attorney misconduct, juror misconduct and trial errors before the ink was dry on the decision.

But a few weeks later, the U.S. Patent and Trademark Office (USPTO) invalidated one of the key patents that Apple used to win its case. This is the patent in which a menu or other screen item will bounce back if it's scrolled past the end.

Then on Dec. 19, the USPTO invalidated another key Apple patent. This time it was for the pinch-and-spread gesture to zoom in or out on a screen. And of course, the USPTO had already invalidated the patent on multi-touch.

No doubt, Samsung thought it was getting a huge Christmas present from the USPTO. But then along came the pesky European Union charging that Samsung appeared to be guilty of patent abuse. At the heart of the abuse claim is a series of patents for 3G communications technology that is essential to the wireless industry.

Samsung registered its patents as "Standard-Essential" which allows such patents with the understanding that those patents would be licensed under FRAND rules, which means that licensing terms must be "fair, reasonable and nondiscriminatory."

But when Apple didn't want to pay Samsung the rate it demanded for licensing, Samsung sued for infringement and attempted to have Apple products banned from Europe. The European Commission suggested that Samsung was violating the law and could take action against Samsung once the company presents its defense. Samsung, meanwhile, has agreed to stop trying to get Apple banned from Europe. An EU spokesperson has called Samsung's moves against Apple anti-competitive.

If Samsung is found guilty of anti-competitive behavior by the European Commission, the company could be sanctioned. Samsung, meanwhile, is benefiting from a similar standard-essential patent from Apple on SIM cards, but apparently Apple has made licensing freely available on the SIM card design used by the iPhone 5 and many other new smartphones.

So has the worm finally turned, and are the patent abusers getting their just deserts? Well, the answer to that is, as you would expect, no. First, just because the USPTO has decided that Apple's or Samsung's patents are invalid, that doesn't mean an end to litigation. After all, the murky patent situation in the U.S. is one of the government's efforts to ensure that every lawyer who wants a job has one.

The Apple-Samsung infringement lawsuit has already been appealed, and that appeal is certain to rehear many of the arguments in light of the USPTO's decisions and issues raised regarding the conduct of the trial. After all, you can't infringe on an invalid patent.

Meanwhile, Apple's patent lawyers will be busy in Washington arguing that those invalidated patents are really valid, and regardless of which way the USPTO decides those cases, someone, somewhere will certainly appeal.

Wayne Rash

Wayne Rash

Wayne Rash is a freelance writer and editor with a 35 year history covering technology. He’s a frequent speaker on business, technology issues and enterprise computing. He covers Washington and...