If Microsoft Wins Its 'Stupid Patent Of The Month' Lawsuit, Expect A Plague Of Trolls To Move Into Design Patents

from the agonies-of-atomization dept

The recent Techdirt article about Microsoft's design patent on a slider understandably focused on the absurdity of companies being forced to hand over all of the profits that derive from a product if it is found to have infringed on someone else's design patent even in just a tiny portion of that product. But there's another angle worth mentioning here that picks up on something Techdirt has written about several times before: the rise and threat of patent thickets. Back in 2012, it was estimated that 250,000 active patents impacted smartphones. That makes it impossible to build devices without licensing large numbers of patents, and even then, it's likely that claims of infringement will still be brought.

The underlying problem is that patents were originally devised for a complete, self-standing process or invention. For example, some of the earliest patents were those granted in fifteenth-century Venice for glass making. Over the centuries, invention has become atomized, with smaller and smaller elements being granted patents. These are not, in general, useful on their own, but must be combined with other components to make something useful.

That process of atomization has reached its peak in the world of software, which is typically made up of thousands of smaller software parts. That's in part why computing has emerged as the field most plagued by patent litigation: if you own a patent on a key element that is required for the other software parts in a product to work properly, you are in a very strong position to force manufacturers to pay you for a license.

The situation described in the Techdirt article about Microsoft's slider shows that there is a risk that the consequences of atomization in the field of design patents, where even tiny, obvious elements are awarded a patent, could be worse than for "ordinary" utility patents. That's because of the high level of damages based on the total profits derived from an infringing product, irrespective of the importance of the design element in question. Let's hope the Supreme Court decides to take this case, and comes out with a sensible ruling that heads off the danger of disproportionate damages. If it doesn't, we can probably expect trolls to move into the design patent world in a big way -- and for real innovation to face even more hurdles than it does at present.

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Filed Under: damages, design patents, patent trolling, patents
Companies: microsoft


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  • identicon
    Lawrence D’Oliveiro, 30 Dec 2015 @ 4:05pm

    I’ve Always Wondered ...

    ... if the patent owner can claim a share of the profits from the infringing product, does that also mean they are liable for a share of the losses?

    After all, if the patented idea is such a key part of the product, then it is a key part for better or for worse.

    Or are patent owners like God—they claim credit for the good stuff, but disclaim any liability for the bad stuff?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 31 Dec 2015 @ 5:16am

      Re: I’ve Always Wondered ...

      You need to practice your DOUBLETHINK. If it makes money, it's all because of the idea; if it loses money, it's all because of the execution.

      reply to this | link to this | view in chronology ]

  • icon
    techflaws (profile), 30 Dec 2015 @ 10:01pm

    where even tiny, obvious elements are awarded a patent

    There's the rub.

    reply to this | link to this | view in chronology ]

  • identicon
    Stupid, 31 Dec 2015 @ 12:00am

    Apple

    I hope you have a similar post for that time apple sued Samsung about rounded corners on icons... Oh, wait, all apple "inventions" are revolutionary.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Dec 2015 @ 2:11am

    Quite amusing to me. Americans ignored the copyrights and patents of their former parent England when they were building up their country yet now their descendants are determined to stifle that same process that allowed their fledging country to become great and successful.

    Amazing how the some people never learn from the mistakes of the past as they are too focused on amassing pointless wealth in the now.

    reply to this | link to this | view in chronology ]

  • icon
    bosson (profile), 31 Dec 2015 @ 4:42am

    Its not atomized thats the problem, its abstraction

    The trouble in software patents is spelled Abstract matters that cover things beyond real world application with information models - no matter scale or composition.

    Combining stuff "atoms" is often inventive and should be protected IMHO. Atoms would in real world terms combine in chemistry...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Dec 2015 @ 9:27am

    Website Design Patents

    Wow, I should have acquired a design patent on websites, with headers and texts in vertical columns below. I'd be richer than Bill Gates.

    reply to this | link to this | view in chronology ]

  • identicon
    Halle Bally, 2 Jan 2016 @ 11:30am

    Is the ribbon interface something to be proud of?

    MS suing Corel is like the schoolyard bully intimidating the skinny geek during recess.  "Why don't you go pick on somebody your own size."

    If one was savvy enough to avoid the dreadful early Windows releases of WordPerfect, it's always been superior to Word.  Well under the radar, it's alive & thriving with Version 17–-albeit with a relatively "microscopic" user base.  Perhaps the bonehead lawsuit can bring some well deserved attention to it.

    Evidently WP has been a sore spot for MS lo these many years.  Just goes to show how "even a little dog can piss on a big building."

    reply to this | link to this | view in chronology ]

  • identicon
    Guardian, 2 Jan 2016 @ 4:26pm

    @8 except you cant

    all that parts of the browser were dumped freely by me and 64 other webhosters back in the netscape communicator 5 days....ts why no one charges for browsers....

    reply to this | link to this | view in chronology ]


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