Monday, July 23, 2012

Should Apple’s Patents That Have Become Standards Be FRAND Patents?

Google argues that the valuable mobile patents that Apple owns which makes the iPhone an “iPhone” should be fair, reasonable and non-discriminatory and subject to standard essential patent rules. I can’t say that I agree or disagree because of the patent system, which essentially lets anyone’s grandmother patent just about anything without really looking into the background of these so-called patents and whether they really are worth patenting.

I do know that companies that patent just about everything and everywhere do spend billions upon billions to patent them.  So, who is to say what patent, hence, which features should be licensable by the patent holder’s competitors.  Furthermore, what if a patent holder simply says its ball can only played on its court and nowhere else, it is no one’s rights, a corporation or government, to come and force the patent holder to open up.

I don’t know Google’s strategy in this.  Intellectual properties are essential for innovation.  Apple suing folks is within its rights to do that just as Google, Microsoft, or anyone else should be allowed to do the same.  I’ve always contend that if anyone finds Apple ripping them off, sue them.  And if one company runs into a patent roadblock, innovate around it.

On the other hand, Apple is very stingy about its patents and it has thrown its weight around the world in various legal jurisdictions on mundane things like product designs.  I’m not a patent or trademark attorney so I don’t know how firm a legal footing Apple has had.  Judging by its win-loss record, not very.

At the same time, one has to wonder if patents, trademarks, or other intellectual property rights mean anything to Google at all.  Sure, its competitors have used patents to try and stifle Android advances (not very successful) in the mobile market but Google continue to disregard them through its partners.  On top of that, Google bought Motorola largely for its patents and it realized much of what Motorola owns are essential standard patents, not like those that Apple owns that makes the iOS devices singularly unique from the rest of the market.

Hence, Google now wants Apple’s patents invalidated if possible but barring that, it wants the government to force Apple and others to label their patents as FRAND.

Why this now?  Well, Google is very late to the patent game regardless of whether it’s the video or mobile market.  And it has tried to use its own technology to build its own standards, albeit with much success.

Having said that, Google does have a point but I don’t think they’re arguing it correctly.  They need to attack the issue at its core which is the broken patent system.  Until then, everyone should play by the same rules regardless of which end they’re on.

Google’s argument is a very big danger to innovation.  My guess is that if the shoe was on the other foot, Google would not be making this argument.  If that’s the case, since Google owns a large portion of the search market, it should be forced to open up its search patents as well? Bottom line is this:  innovate, innovate, innovate regardless of the state of the patent system.  Learn to change the rules of the game all you want but you still have to bring your best to the market.

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