In the Wake of Apple V. Samsung: Is Patent Litigation On The Rise?

With all the attention recently being paid to the lawsuit Apple won Friday against Samsung and the separate, still-pending Motorola Mobility case against Apple, there's no hiding from patent infringement claims. And, those lawsuits seem to be cropping up with increasing regularity. Perhaps getting the most attention are the ones involving major players, like Apple (NSDQ:AAPL) and its wars with Motorola (NYSE:MOT) Mobility and Samsung, but smaller companies, too, are affected, both directly and indirectly. With so much on the line -- Apple could lose the right to sell iPhones in the United States, for example, if Motorola prevails -- it begs the question: Are such suits frivolous or legitimate?

"While the intent of patents is to spur innovation by encouraging inventors to share their knowledge in return for a period of exclusivity, the reality seems to suggest that companies are substantially increasing their portfolios to arm themselves with tools to assert against competitors or as a response against those who initiate claims against them," said Birch Stewart Kolasch & Birch partner Quentin R. Corrie. "Have the stakes become so high and the competition so fierce in certain industries [electronics and pharmaceuticals, for example] that the protection afforded intellectual property is now only available to elite Fortune 500 companies?"

[Related: Samsung: Apple Victory To Hurt U.S. Consumers, Smother Fair Competition]

It's also likely that there's more intellectual property (IP) litigation because patents for technologies that depend on the Internet were filed in the late 90s and early 2000s and were then issued in the last five years. Today, as new software and devices debut at a rapid pace, those patents are being tested in court. And sometimes, on-lookers scratch their heads and wonder how something as seemingly mundane as a finger swipe, for instance, can be patented.

 

"One thing I hear a lot is the sense that many companies are suing for infringement on patents that should never have been received in the first place, because they are for methods of doing business that were really very well known," said Joel Rothman, an IP attorney with Arnstein & Lehr in West Palm Beach, Fla. "How can they have these powerful patent rights when it's something being done for a long time?"

In reality, Rothman said, claims to originality are litigated extensively in patent infringement cases. The court recognizes that often there are many different ways to perform a certain task. If the defendant can prove development occurred without infringing a patent, then the defendant is likely to go to court to prove its case.

"When a patent owner seeks to enforce the patent, it's always been the case that the alleged infringer wants to fight or cut a deal; that's no different if you're discussing Internet technology or a better mousetrap. [The parties] need to determine if it makes more sense to fight," Rothman said. "Litigation is scary often, but risks are manageable. Typically, we do a cost-benefit analysis and see if it makes sense to do a licensing deal."