This article is by Kim Weatherall, a senior lecturer in law at the University of Queensland. It was first published on The Conversation.

opinion The mobile patent wars, it seems, have reached Australian shores.

On Monday, representatives of Apple and Samsung were in the Australian Federal Court, fighting it out over Samsung’s Galaxy Tab tablet computer.

Apple is alleging infringement of a series of Australian patents – mainly related to gesture-sensitive touch screens (see list below) – as well as, it seems, breaches of consumer protection law (by misleading people into thinking that the Galaxy Tab is the iPad, or is licensed by Apple).

The hearing on Monday ended with Samsung undertaking not to sell its US Galaxy Tab 10.1 in Australia (without permission from Apple first), and to give Apple, seven days before launch, samples of an allegedly different “Australian version” of their tablet. The parties are back in court for a procedural hearing at the end of this month.

But this is far from an isolated battle. It’s a very small part of a global battle over patents in the mobile space. Apple and Samsung are currently involved in litigation in at least nine other countries, and these fights aren’t all one-way: in some, Samsung has countersued Apple for infringing Samsung’s patents. Apple is also fighting with HTC and Nokia.

Microsoft, too, has been filing patent infringement suits against companies using Google’s mobile system, Android, and observers have commented that Google’s recent patent acquisitions have a lot to do with these battles. Just recently too, all the big companies in this space had a battle for a portfolio of 6,000 wireless patents previously owned by communications equipment manufacturer, Nortel.

The reasons for the breakout of patent litigation in the mobile space aren’t all that hard to understand.

Historically, the big mobile phone companies (Nokia, Ericsson etc) had plenty of patents, but ended up licensing each others’ technology. The entry of Google, via the Android system, and Apple into this space must have been a massive disruption to these comfortable arrangements. And the result has been war.

It is entirely possible – even likely – that the Federal Court will never get to rule on the case – either because the parties settle all the litigation, or because rulings by courts elsewhere lead to a settlement of the remaining cases.

In a way, that’s a shame, because the proceedings raise some interesting legal and policy questions.

The key legal question is whether these patents are valid – whether Apple can really claim that the inventions described are really new and inventive across the full scope of the claims. Even once the Australian Patent Office issues a patent, it is still possible for someone sued for infringement, such as Samsung, to allege the patent shouldn’t have been granted.

And the breadth of the monopoly Apple is claiming, particularly in patent 2007286532, is breathtaking. On my quick reading, that patent seems to cover most commands given using more than one finger on a touchscreen of any computing device (mobile phone, tablet, or anything else). Think “pinch to zoom” and everything else.

I’d like to think Apple won’t be able to maintain a claim that broad, but in patent law, you never know – it all depends on what existed before the date of the patent.

The policy questions raised by this case – and all its foreign cousins – are whether the patent system is encouraging innovation in software and mobile technologies, and whether the costs these patents have for competition are just getting too high. What if we were to tote up all the legal fees and expenses, the costs in court time and the diversion of efforts away from innovation and towards litigation, the costs in getting the patents in the first place, and fighting over them worldwide, and buying the patents of defunct companies?

Do you think we’d be convinced the costs are worth it? Apple and Samsung are big enough and ugly enough to take care of themselves in this kind of battle. But I do worry about the little guys. And I worry about the impact on competition.

If the case settles, we’ll forget these issues for a while – we’ll get our Galaxy Tabs and all the rest. But the patents will stay with us until the mid 2020s.

The Australian patents Apple alleges Samsung infringed are:

Innovation Patents

• 2008100283: List scrolling and document translation, scaling, and rotation on a touch-screen display
• 2008100372: Electronic device for photo management
• 2009100820: Unlocking a device by performing gestures on an unlock image
• 2008100419: Unlocking a device by performing gestures on an unlock image
• 2008101171: Portable electronic device for imaged-based browsing of contacts

Standard Patents

• 2008201540: List scrolling and document translation, scaling, and rotation on a touch-screen display
• 2005246219: Multipoint touchscreen
• 2007283771: Portable electronic device for photo management
• 2009200366: List scrolling and document translation, scaling, and rotation on a touch-screen display
• 2007286532: Touch screen device, method and graphical user interface for determining commands by applying heuristics

Should companies be able to patent ideas such as those listed above? Leave your comments below.

Image credit: Samsung

Tweet

1. looktall
   Posted 04/08/2011 at 4:42 pm | Permalink | Reply

   patent wars are rubbish.

   companies should concentrate on innovation, not litigation.

2. Eric
   Posted 06/08/2011 at 11:00 pm | Permalink | Reply

   Protecting patents protects innovation – copying is not innovation.

3. efmjnjufs
   Posted 25/05/2012 at 10:52 am | Permalink | Reply

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