Smartphone patent lawsuits accelerating

Microsoft suit against Motorola - latest in an increasingly litigious smarthphone market

Smartphone patent lawsuits seem to be growing at a rapid clip. Remember Apple sued HTC for iPhone patent infringement in March, and HTC's countersuit against Apple? Or what about Nokia's latest suit against Apple's iPad and iPhone 3G in May? Then there's NTP's July suit against Apple, Google, Motorola, Microsoft and HTC over smartphone email.

As it turns out, the patent suits are still coming.

This past Friday, Microsoft sued Motorola, claiming that the hardware maker's Android phones infringed on nine of Microsoft's patents. Those patents include, items related to areas such as: meeting scheduling, creating and managing contacts and calendars, synchronization of email, reporting changes in battery strength  and reporting changes in cellular signal strength. One of the patents in question, dates back to 1996, and is related to file-naming systems.

The actions were filed in both Washington District Court, and the International Trade Commission. Specific models in question in the suite include: the Motorola Droid 2 and the Motorola Charm. The Droid 2 has only been on sale since August 11th, and already has an R2-D2 themed limited edition on the market. There are rumors, that the Droid 2 is already going to be replaced, by a newer model.

If it seems like more suits are flying fast and furious, it's because they are.

"Everybody started suing each other a lot more -- not only in telecoms, but in software and a number of other fields -- starting in the mid- to late-90s," Jim Bessen, a law lecturer at Boston University, told Wired UK,  "The number of lawsuits filed in the US has tripled since the early-90s."

Why is it that innovative companies are spending millions to sue each other?

We may have an answer. "NTP's Patent litigation is a tool, just like raising and lowering prices to achieve goals,"  R. Polk Wagner, a law professor at the University of Pennsylvania, told Knowlidge at Wharton, "In the case of the smartphone market, patent lawsuits are a very deliberate strategic initiative as companies jockey for position." This means, that rather then developing better and smarter products, these companies are choosing to try and keep down the competition.

While this may not exactly be ethical behavior, it works. Many smaller companies stay out of these areas entirely, because of the costs of litigation. As a matter of fact,  litigation costs for publicly traded companies have consistently outweighed the profits that companies derived from patents, according to the 2008 book Patent Failure. The book also found that patent litigation, which has been rising at  an average 5.6%every year since 1991, can cost between $1 to $3 million in pre-trial costs alone.

Some of the problem does stems from patents that are too vague. Despite a United States Court of Appeals ruling, in December of 2009, that put limits on "business method" patents which were not tied to a particular machine or physical transformation of matter. While this ruling may limit future vague patents, it does little to deal with the currently existing patents.