29 August 2012
Last Friday saw the outcome of the Apple v. Samsung lawsuit in the US. The decision of the San José court has attracted wide media interest, far beyond the confines of the IP world – partly, no doubt, because of the spectacular award of damages, amounting to USD 1bn.
Some commentators have seen this case as evidence that the patent system is no longer playing its appointed role in fostering innovation.
This view, to me, is partial. Certainly, like any complex legal framework, the patent system requires regular adjustment. This is the job of the legislators: to assess the functioning of the system and make improvements as necessary, while other authorities, such as those in charge of trade and competition, monitor its fair use. However, the public debate over headline cases involving big companies ignores the diversity of the patent system and the differences in the situation of patent holders. In my exchanges with the user community, in particular with SMEs and individual inventors, I have repeatedly been told that a handful of patents were the only way for users to protect their rights and their position at the negotiating table.
It should be remembered, too, that the market for mass-manufactured products is global and often involves huge sales volumes. In the Apple-Samsung case, the level of damages has to be set beside the hundreds of millions of smartphones sold annually around the world. The development of the patent system during the last century was marked by continual clashes of this kind in specific technological fields (see for example Peter Marsh, “The New Industrial Revolution”, 2012). The difference today is mainly one of scale. Moreover, the sophistication of many everyday products can create a huge concentration of technologies from different actors, increasing the risk of conflict.
My own feeling is that the patent system is a mirror of our economy, reflecting globalisation and market growth, but also the explosion of innovative energy which patents have facilitated and consistently encouraged. That role of the patent system – as a motor of innovation – remains crucial to industry and society.