Phone patents: An absurd battle - BBC News

You only have to look at some of the ridiculous numbers involved in the smartphone wars to see why they continue to rage.

Apple blocks Samsung sales. Samsung blocks Apple sales. Apple ban overturned. Samsung ban lifted. On any given day it's hard to keep track of which company's smartphones, tablet computers or other products are temporarily banned in which countries.

And it's not just Apple and Samsung which are at each other's throats - it seems that every week brings new stories of alleged patent infringement involving companies ranging from household names like HTC to more obscure outfits like VirnetX. (In case you're wondering, Apple was recently ordered to pay $368 million to Connecticut-based VirnetX after a US court ruled that its Facetime video chat tool infringed two of VirnetX's patents).

But what's the reason for this apparently endless series of patent battles involving smartphone and tablet firms? Why do they appear to be incapable of taking more effective steps to avoid infringing other companies patent rights?

One reason boils down to the nature of mobile devices like smartphones and tablets, according to Daniel O'Connor, a self-styled anti-trust and internet policy wonk as well as senior director of public policy at the Computer and Communications Industry Association. He says that software is a particularly active area for patents, especially anything to do with telecommunications, semiconductors and 4G data networks. Software patents are also particularly broad and vague, and that makes infringement difficult to avoid. "That creates the conditions for a kind of patent perfect storm," O'Connor says.

Number crunch

To get an idea of the size of the problem facing the likes of Apple and Samsung, consider this: O'Connor believes  - based on estimates from patent firm RPX - that there are about 250,000 active patents in the United States that may have some relevance to the activities of mobile device manufacturers out of a total of about 1.5 million active patents. That means that about 17% of all active patents in the United States are potentially patents on smartphone technology.  

But that only begins to scratch the surface. That's because, as O'Connor points out, most of these patents don't just make a single claim to a particular intellectual property right - on average each patent makes more like 20 such claims. That means that this collection of 250,000 patents actually describes about five million restrictions on what mobile device makers can do while they design a new model. Realistically an individual may be able to keep five, 10 or maybe 20 restrictions in mind when designing a new feature for a mobile device, but probably not 50 or 500. And five million? Not a chance.

Now, you might think that large technology companies like Samsung or Apple must have busy legal departments brimming with patent attorneys whose job it is to make sure that any new products don't infringe other companies' patents. But in the VirnetX case, this was allegedly not the case. "Apple says they don't infringe, but Apple developers testified that they didn't pay any attention to anyone's patents when developing their system," a lawyer for VirnetX was quoted as saying.

Apple's behaviour may sound bizarre, but there's a very good reason why many companies ignore the patent system when it comes to software. A recent study found that if every software producing firm in America wanted to check just the new software patents issued in a given year, about two million patent attorneys working full time would be needed to do the job.

That's a problem because there are only about 40,000 registered patent attorneys and agents in the entire United States according to the United States Patent and Trademark Office. And even if two million hard working attorneys could somehow be found, at an hourly rate of $371 (the average cost of a patent attorney, as estimated by American Intellectual Property Law Association), their fees would come to about $1.5 trillion - or nearly 10% of the GDP of the USA. And that's assuming the attorneys didn't slack, spending no more than 10 minutes examining each patent.

‘Fingers crossed’