It’s no secret that the US patent system is incredibly flawed and Google is trying to get the point across to Senate Judiciary Committee. In a recent letter the company is defending Motorola’s side in its most recent ITC ban, citing standards-essential patents (SEPs).
While collaborative [Standards Setting Organizations (SSOs)] play an important part in the overall standard setting system, and are particularly prominent in industries such as telecommunications, they are not the only source of standards. Indeed, many of the same interoperability benefits that the FTC and others have touted in the SSO context also occur when one firm publishes information about an otherwise proprietary standard and other firms then independently decide (whether by choice or of necessity) to make complementary investments to support that standard in their products. … Because proprietary or de facto standards can have just as important effects on consumer welfare, the Committee’s concern regarding the abuse of SEPs should encompass them as well.
From Google’s point of view there are patents that are standards essential, there are also patents that are commercially essential. These commercially essential patents are those that have become ubiquitous because of their extreme popularity. This would apply to things like multi-touch technology and slide-to-unlock.
Apple centers it’s entire iPhone and iPad branding around this type of IP portfolio and it thinks there should be an exception. Bruce Sewell explains, “that a proprietary technology becomes quite popular does not transform it into a ‘standard’ subject to the same legal constraints as true standards.” He says that non-standardized technologies promote innovation and differentiates products.
The capabilities of an iPhone are categorically different from a conventional phone, and result from Apple’s ability to bring its traditional innovation in computing to the mobile market. Using an iPhone to take photos, manage a home-finance spreadsheet, play video games, or run countless other applications has nothing to do with standardized protocols. Apple spent billions in research and development to create the iPhone, and third party software developers have spent billions more to develop applications that run on it. The price of an iPhone reflects the value of these nonstandardized technologies — as well as the value of the aesthetic design of the iPhone, which also reflects immense study and development by Apple, and which is entirely unrelated to standards.
While both sides make valid points, it’s the US government who needs to get a grasp on the patent system in general and fundamentally change the way they grant patents. We’re living in the 21st century, but the legal system is struggling to keep up.