Smartphones Patented... Just About Everyone Sued 1 Minute After Patent Issued

[Rocco Augusto]

<div class='os_post_top_link'><a href='http://techdirt.com/articles/20080124/16382062.shtml' target='_blank'>http://techdirt.com/articles/200801.../16382062.shtml</a><br /><br /></div><em>&quot;This past Tuesday, the US Patent and Trademark Office issued a patent on &quot;a mobile entertainment and communication device.&quot; Reading the patent, you realize it describes the quite common smartphone. It's a patent for a mobile phone with removable storage, an internet connection, a camera and the ability to download audio or video files. The patent holding firm who has the rights to this patent wasted no time at all. At 12:01am Tuesday morning, it filed three separate lawsuits against just about everyone you can think of, including Apple, Nokia, RIM, Sprint, AT&amp;T, HP, Motorola, Helio, HTC, Sony Ericsson, UTStarcomm, Samsung and a bunch of others. Amusingly, the company actually first filed the lawsuits on Monday, but realized it was jumping the gun and pulled them, only to refile just past the stroke of midnight.&quot;<br /><br /></em><img border="0" src="http://images.thoughtsmedia.com//spt/auto/1201337060.usr8.gif" alt="" /><br /><br />I am so angry right now I can barely type. Do they just award patents to anyone nowadays?! You would think that after the whole three ring circus that occurred with Research In Motion, that the guys and gals over in the patent office might have sat down and had a meeting and realized that it just<em> isn't </em>a good idea to start handing out patents like they were pennies at old lady Miller's house on Halloween. I sure as heck didn't appreciate that when I was kid and I definitely do not appreciate this now. Come on, for crying out loud, this is why all the kids on the block toilet papered her trees every year! I mean sure, maybe it is a little unrealistic to think that we could be like Switzerland and hire geniuses like Albert Einstein to work in our patent offices, but is it really so farfetched to hope and dream that we could hire someone that has used a damn cellphone or computer before?! Heck, I would settle for someone that has used a toaster before or didn't beat on their chests when they saw fire! Even my four year old daughter wouldn't approve a piece of garbage like this and she&rsquo;s still young enough to <em>not</em> realize that if an ACME anvil fell on your head you wouldn't be able to blow on your thumb and inflate yourself! This is almost as painful as reading through the <a href="http://www.darwinawards.com/">Darwin Awards</a>... actually, I take that back, this is a hundred times more painful because I know deep down inside someone at the patent office is still around to procreate.

[Jason Dunn]

:mad: That's just IDIOTIC. Why hasn't anyone completely overhauled the patent process??

[Sven Johannsen]

Don't fret. We are safe. The patent indicates the device has an equalizer in the media section, and we all know we don't ;)

[TopDog]

Only in America ;)

[Rocco Augusto]

Only in America ;)

No kidding. Hopefully someone over there opens up there eyes and revokes this patent as granting it was nothing short of ridiculous :mad:

[randalllewis]

What do you expect from this incompentent government? The Patent Office's companion in stupidity- the FCC- just announced it was considering a major fine against ABC for showing a woman's bare butt in an episode of NYPD Blue that aired in 2003!

[Mike Temporale]

Perhaps this is the real reason Microsoft decided against using Smartphone in the new names for Windows Mobile. Instead they went for more generic terms like Standard, Pro, and classic to ensure that they can't be sued by some loser company.

[MadSci]

...this will go away. The Applicants filed their original patent in 1997. If they actually showed in 1997 how to do all this, and no-one else had done so, then they were first and deserve to be paid by others who have appropriated their work which was openly disclosed thru the Patent process.

But, I wouldn't worry too much for the cell companies. As I said, this patent's origins are in November 1997. The Simon was disclosed in 1992 and sold in 1993 in the US. The Nokia 9000 was released in 1996/1997 (and was featured in a Hollywood movie (The Saint) in 1997 for godsakes!:eek:), and the Samsung SCH-1500 (which they cite) in 1998. As the Nokia actually surfed the Web, and had most of th limitiations in their claims, I expect that these, and some other phones overseas, will be cited to force a re-examination of this patents claims, which will be greatly narrowed. It does look like on face, in 1997, some of this was truly novel, but clearly most of it was not.

Interestingly, they do NOT make ANY reference to teh Nokia 9000 in the Patent. It's possible it is buried in a cited document, but after looking them over, I don't think so. It's a big no-no to NOT inform the examiner of relevant 'Prior Art' and I don't think they can claim ignorance of the 9000, even if they don't like Val Kilmer movies:D. This allone may haunt them big-time and will be a bad problem if a re-examination is ordered by the Court during a lawsuit, which is exactly what I expect will happen. Frankly, in this light, I don't think that most of this Patent is valid and will hold up in a fight. If they had been several years earlier, maybe, but not in November 1997.

Remember too that you can't demand payment for the past use of a newly-patented technology, just payment on what the patent violators have made since your Patent was 'Allowed' and 'Published'. So, it's not like they owe this company billions. RIM only ended up owing so much money because they refused to pay a royalty on an 'issued' patent, then ignored a court's orders to do so. Play fair, and the price is reasonable.


The Patent problem that arises so frequently today isn't just with the PTO per se, but with the slow pace of things. If I truly am the first to tell the world how to do something, and subsequently large companies take this idea and make lots of $ off of it, I should be paid for showing them how.

The problem really arises when it takes over a decade to establish that I have the right to get paid. In the meantime, what was novel and inventive a decade ago, now is taken for granted and completley 'obvious' to everyone, so people think I am unfair and unreasoning, along with the PTO.


Think of it this way: If Motorola filed for a patent on cellular technology in 1973, the year they placed the first cell phone call, and everybody took the patent information and used it to make their own cell phone business, without paying Motorola a dime, and it took 30 years before the PTO granted them the right to force other to pay for doing so, would it be 'wrong' for Motorola to demand payment?

No, it would in fact have been 'wrong' for the cell phone companies NOT to have paid Motorola from the start, waiting until you are forced to pay for something isn't moral behavior. It's analagous to stealing and not paying unless and until caught and forced to make restitution by the Courts.


But it's not that simple, because until a patent is actually issued, nobody knows for certain what the other guy actually 'owns', so you wait for the patent to issue. In fast moving sectors like technology, a 10 year wait is appalling, and sets the stage for the kind of reactions I have seen here on this Forum. WOuld any of you be upset if the darn patent had Issued in 1998 instead og 2008! Probably not.

But still, there is a way out of that dilemma too! Before the Patent issue, you negotiate a deal with the original Inventors, paying them a reduced royalty on their not-yet issued patent as an acknowlegement that you have benefitted from the knowlege they have divulged. If the Patent issues, then you start paying a higher royalty, as it is now certain that you are using what the patentholders owned all along. Part of the deal of course, is that by paying on the information before the Patent is issued, you become immune to lawsuits for 'non-payment' of royalties at any time.

I see these kinds of deals all the time in Biotech, but in the fast moving tech sector, companies would rather make hay while the sun shines, and fight over any possible consequences later.

So be it, let the companies deal with the legal ramefications of their deciding to ignore the pending patent, and make a deal now on the issued Patent, or fight. We won't notice or care. Anyone here have to kick in $ to pay for RIM's bad behaviour?:D