Judge Robart’s RAND decision in the Microsoft v. Motorola case is receiving well-warranted attention, and for good reason. Of course, we here at the Essential Patent Blog find this developing area of law fascinating. So I welcomed Tom Keene’s invitation to discuss Judge Robart’s decision live on Bloomberg TV’s “Bloomberg Surveillance” program this past Monday, April 29. The focus was to be on the particular question of whether Google’s purchase of Motorola has panned out, given recent Motorola patent litigation losses. So I prepared through immersive study of Judge Robart’s decision, as well as our prior postings and the details of the various Motorola cases in the so-called Smartphone Wars. Forget the forest or the trees — I stared at every branch, twig and leaf.
And Monday morning, in a remote studio in Washington, DC, Tom Keene’s voice from New York came into the earpiece asking an important question I never expected: What about the forest?
“Patents just does nothing for me, I just don’t care about this. Why is this important? Sell me on the idea of why our listeners and viewers should care about patent law in America!”
Caught flat-footed, I mustered an okay reactionary response in the 30-seconds-or-less allotted to answer.
But the question warrants stepping back to ensure we maintain sight of the forest as well as the trees. Fostering and protecting innovation through patents is a core American value—it’s in our Constitution. Guided by that, we have created the greatest system for innovation ever known. Sure, like all thriving systems, it needs constant tending and improvement. But let’s not lose sight of where that system has brought us so far.
Take smartphones. Smartphones are a marvel of modern innovation. What early settlers would have given—and innumerable lives saved—if they could have held in their hands the devices we now have, with maps showing where we are at, what lies ahead, what weather is coming and where our loved ones are. What would we do without them? We sleep with them by our bedside. We check them during important business meetings to see if that call is from our kids’ school—and we proceed with comfort knowing they can reach us when needed.
Treat yourself by listening to Brad Paisley’s song “Welcome to the Future” and reflect on what we’ve accomplished so far. Technology innovations allowed Martin Luther King, Jr. to share his dream far beyond the time and presence of that moment. Technology innovations allow our weary warriors to see the faces—or even births—of far-away loved ones for whom they may make the greatest sacrifice. And technology innovations make long family road trips bearable—ask anyone traveling with school-aged kids without in-car TV or handheld games.
The patent system has helped fuel this innovation. Patent rights help justify the investment and risks in trying to create and place innovative technology in the public’s hands. A patent-protected innovation, for example, may be why a consumer prefers one cell phone over a competitor’s cell phone. So, the competitor then invests in its own patent-protected innovations to lure the consumer back (or as a means to get a cross-license to use someone else’s patented technology in its own products). And through that process, we’ve transitioned from single-function, suitcase-sized wireless phones to the pocket smartphones that do the many amazing things they do today — and we expect more to come.
Some have wondered whether the Smartphone Wars show that the patent system keeps useful technology out of the public’s hands. Well, patents have been a prominent part of the cell phone industry during all of its rapid-paced innovations. And it’s said that in our modern times there are more cell phones than people—and more people have cell phones than have toothbrushes. Whatever specific patent-related problems the Smartphone Wars may or may not expose, our patent system’s fundamental principles appear to be working.
To be clear, though, the patent system is not flawless. Like any system, it can be abused and must be updated to account for modern technology and industries. There are problems to address, such as abusive patent litigation. But let’s not burn down the forest in the process. The patent bar—we stewards of the greatest system for innovation ever known—will continue to focus on every branch, twig and leaf comprising our patent forest (pruning here, fertilizing there). But let’s not forget to step back to view the forest and marvel at what we’ve done so far. To appreciate where we’ve come from, where we are at, and where we are going. Fascinating.