The latest chapter in the tech patent saga comes in the form of a lawsuit by Aruba Networks against Motorola subsidiaries Symbol Technologies and Wireless Valley Communications. Aruba's lawsuit is actually a counter-offensive to a lawsuit filed in August by Symbol and Wireless Valley that accuses Aruba of infringing upon several of their patents. The punch line of the counter-suit is the revelation that, in 2003, Aruba opened its robes to Symbol during due diligence for a potential acquisition. Now, after chewing for four years on what it learned about Aruba's system, Symbol suddenly claims that Aruba's technology has, since the beginning, infringed upon Symbol's patents.

In how many ways does this case illustrate some of the insanities of the patent system? For one, patents applied for by Symbol in February 2001 were not granted by USPTO until February 2007. While prudence in patent examination is expected, six years is a lifetime in technology years. Making the assumption that the technology in question is justifiably patentable, the USPTO clearly failed Symbol: its market share in WLAN hardware has dwindled in the intervening years while Aruba's has grown strongly. Checking that assumption, it's difficult to see how technology that was simultaneously developed by no fewer than four different companies (Symbol, Aruba, Airespace, Trapeze Networks) qualifies as novel, non-obvious, and therefore patentable. But it's the entire timeline that perhaps best illustrates the lunacy. In 2001 Symbol had an idea, and Aruba Networks didn't yet exist. By 2003, Aruba was delivering its product to customers but Symbol still hadn't made it to market and was kicking the tires at Aruba. Fast forward to 2007, Symbol's market share has fallen to third place and fading behind Aruba (even holding that position largely due to sales of legacy WLAN hardware, I suspect) and suddenly it discovers that all along Aruba has been infringing upon its "invention".

It's a sad but popular refrain made possible by the soft protectionism that is the current patent system.

Back on June 29th, when the iPhone launched, we had some of the experts in the Techdirt Insight Community give their thoughts on how competitors should respond. There were, as per usual with the experts in the community, some really insightful and interesting responses. From that, we've been able to sign new business helping companies formulate and execute on their latest strategies. However, it seems that not everyone is taking a proactive approach to responding to the iPhone (or, at least they're not willing to admit it publicly). Gizmodo points us to an unintentionally amusing article where Laptop Magazine tried to get four competitors to give their thoughts on the iPhone. Rather than admitting that the iPhone has really shifted how many people view mobile phones and what they can do, all of the companies basically toe the corporate line, look the other way on iPhone questions and make sure to mention their own phones as many times as possible. Given the market response, however, it seems pretty clear that Apple is delivering what the market wanted, while these other guys have not. Insisting that you do have what it takes when the market is shifting elsewhere isn't going to be a winning strategy. Of course, we're here to help. If companies want to formulate a real strategic response to the iPhone, they might want to give us a call.