A majority of the Federal Trade Commission's (FTC) five commissioners want to sue Google for trying to block competitors' access to smartphone patents in US, citing violations of antitrust law. According to several individuals close to the matter, litigation has been formally recommended but any decisions will likely wait until the presidential election is over. Despite recent talk by the search giant about making many essential patents available to all, this isn't the first time they've been hauled into the patent courtroom.
The Problem With Patents
An article at Bloomberg says the issue here isn't that Google wants to defend its patent rights, but rather that it doesn't want to play fair when it comes to industry-standard patents. These patents are meant to work together, with owners pledging to license them on reasonable terms to other companies in order to make things like 3G or Wi-Fi or video streaming work without an exorbitant cost. The FTC inquiry delves into Google's attempt to block Microsoft and Apple products from shipping to the US by alleging they violate the search giant's patents. They might, in fact, but there are questions about the essential nature of these patents and if Google is simply trying to block competitors by failing to honor their industry-standard pledge. If so, the FTC could rule against them for violations of antitrust law.
Jorge Contreras, an associate law professor at American University, says, "It's hard to see the antitrust violations here as being very strong." He goes on to note, "They are rattling a lot of sabers at the regulatory agencies, but my suspicion is that those won't go far." Even if the FTC doesn't move forward and sue Google, or if the results turn out to be nothing more than a slap on the wrist, there's a larger problem - and it's not litigation. It's privacy.
Keep Your Enemies Close
When tech companies head to court, their biggest concern is often for secrecy, not the eventual trial outcome, according to a recent Reuters article. Paying a fine or changing a sales practice is easy - having other companies and the world get a good look at proprietary technology specifications and design ideas is something else. As a result, companies typically ask judges to keep most of their sensitive data secret, but lawyers are increasingly unhappy with this arrangement. It makes sense: In a high-profile public trial setting, removing almost all pertinent data from public view hardly seems fair, but businesses rightly assert that showcasing their intellectual property shouldn't be the cost of a day in court.
This is where the technology/courtroom divide is most obvious and why midsize admins need to watch carefully as these trials move forward. It's not simply that big players like Google aren't immune - antitrust laws are gaining greater force as the global economy moves forward - it's that lawyers aren't IT, judges aren't IT, and the general public is most certainly not IT. By focusing on litigation as the only way to resolve intellectual property (IP) disputes, tech companies run the risk of doing exactly what they hope to avoid: devaluing their patents. If private information about design or implementation suddenly becomes public, imitators will emerge, cheap knockoffs that are far harder to control than if the parties in question simply sit down and hammer out an agreement over use. Put simply, the court does not do what companies think it does.
It's tempting to throw down the gauntlet, call a lawyer, and start the trial process. The FTC seems willing to do just that with Google. This is an easy answer and can certainly generate public interest, but it ultimately fails at both protecting private interest and forwarding the cause of IT.
This post was written as part of the IBM for Midsize Business program, which provides midsize businesses with the tools, expertise and solutions they need to become engines of a smarter planet. Like us on Facebook. Follow us on Twitter.
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