A funny thing has happened to patent law in the 21st century. Instead of protecting intellectual property rights, patents have been hijacked by rich companies to take control of a market -- and the problem is particularly acute in the mobile space.
Reuters reported last week that the EU is beginning to think companies are using patents unfairly to harass market rivals.
EU competition commissioner Joaquin Almunia told Reuters that he is looking for answers from companies, because it appears patents are not being used in the proper spirit. He points to the Apple-Samsung tablet tug-of-war as a prime example of how this works. "In particular, in the IT sector, it is obvious it is not the only case. Apple and Samsung is only one case where IP rights can be used as an instrument to restrict competition."
It's gotten so bad that in September, a German court forced Samsung to remove its tablet from a Berlin trade show -- actually take it off the show floor -- and then from German store shelves.
If that's doesn't qualify as stifling competition, I don't know what would, but it's not just Apple and Samsung. There are patent lawsuits aplenty under way from all the major players, along with some from companies you probably never even heard of, as this infographic illustrates.
It's reached such ludicrous levels that Microsoft actually makes money every time an Android phone is sold because of patents it holds. Steven J. Vaughan-Nichols reported in a ZDNet post last September that, because of these patents, Microsoft earns between $3 and $6 on every Android phone sold. It could earn a tidy $444 million in revenue from this source in fiscal 2012, Vaughan-Nichols wrote. How crazy is that?
To almost anyone who is not a lawyer or an employee of a company benefiting from these lawsuits, it's completely absurd, yet the patent and copyright trolls continue to have their way for the most part, and it's really not right.
Patent law did not develop so wealthy corporations could collect them like baseball cards and then use them to hammer competitors. Intellectual property law was developed to protect the individual inventors and artists who actually created unique things, so that the bigger guys couldn't swoop in and steal their ideas.
The concept has been turned on its head, so it's encouraging that the EU is beginning to recognize that patents are being used to stifle competition and innovation instead of promoting it.
Apple didn't invent the tablet footprint, for instance. Even if it did, the tablet is going to be a basic shape and design by its nature. Apple shouldn't have any more rights to that than someone should own the rights to the automobile.
Putting basic starting-point designs like these under patent protection only serves to smother competition and innovation within a given product category. Given that Apple is so far ahead in the market and a proven innovator, I'm baffled by the Samsung-Apple case. Why would Apple even bother trying to chase off the competition in the courtroom instead of the marketplace, where it's clearly winning in a big way, anyway?
Unfortunately, that's the way things work now. Companies buy patent portfolios, and then the lawyers do the rest. It's reached levels of insanity that I'm sure nobody imagined. Worse, the patent process is suffocating the very attributes it was supposed to promote. It's time for someone -- anyone -- to step in and be the voice of reason.
Maybe that someone is the European Union, and others will follow suit. As it stands now, the situation is untenable.
— Ron Miller is a freelance technology journalist, blogger, FierceContentManagement editor, and contributing editor at EContent magazine.