Today, everyone connects effortlessly to the Internet via Wi-Fi technology when at home or in coffee shops, or on the move via the 3G or 4G networks used by smartphones and tablets.
Fifteen years ago, everyone was literally tethered to the Internet via a cable, usually a telephone line. Eight years ago, everyone had a “dumb” cell phone and there were no tablets. The exploding growth and lower prices in the high-tech industry have given everyone wireless capabilities to check e-mail, stream movies, play games and do many other things once thought of as science fiction.
For the hundreds of millions of people using Wi-Fi networks, it just works. Phones, tablets and laptops automatically recognize available Wi-Fi networks and sometimes automatically connect. It’s almost magical.
Few people are aware of the ongoing tens of billions of dollars in research and development that made this incredible progress possible. Even fewer people are aware of how patents have been key in recouping these huge R&D investments, allowing companies and their engineers to pursue ongoing high-tech developments from 2G to 3G to 4G to even faster and more reliable Wi-Fi networks in the coming years.
Instead, people read about the Apple-Samsung patent lawsuit and the “smartphone wars.” They hear cries of a “broken” patent system and that patent owners are allegedly “holding up” important technological developments. Ironically, they read these reports about the alleged “failures” of the patent system on their low-priced, fast-developing smartphones and tablets using Wi-Fi and thousands of other technological innovations brought to them by the patent system. The contradiction between rhetoric and reality is breathtaking.
Unfortunately, some companies are now taking advantage of this anti-patent rhetoric to weaken protections for patented innovation in technological standards.
For more than five decades, standard-setting organizations have worked efficiently in providing a means by which high-tech products and services can work on many different devices, such as digital storage devices like disc drives or memory sticks, USB connectors and Wi-Fi, among thousands of others. Everyone benefits from the work of SSOs, but they are not name brands known to consumers, like Apple, Microsoft or Intel; they are entirely the domain of engineers and tech geeks. For those of us who still read product manuals, we see their names in the fine print, such as the Institute of Electrical and Electronics Engineers or the European Telecommunications Standards Institute, among others.
In a non-transparent and closed process in the standard-setting division at the IEEE, some companies have worked tirelessly to convince this important SSO to substantially weaken patent rights in technological standards. These companies have exploited today’s prevailing anti-patent rhetoric to argue that the IEEE should make it much harder for creators of patented innovation to enforce their patent rights against infringers.
There is no reliable evidence – and certainly no evidence acquired by proper scientific norms of empirical study – that technology is being “held up” or that consumers are being “harmed” as a result of patents on technological standards. The explosive technological innovation, diversity in products, and incredible low prices in smart phones and tablets belie any assertions to the contrary that are based on only self-serving anecdotes or unproven theoretical models.
The companies working to weaken patent rights under IEEE policies are doing so because they benefit in the short term: it reduces what they have to pay to the companies and inventors whose patented innovation they incorporate into their products. Simply put, they are further down the production chain and they are seeking to artificially lower their costs – to the detriment of our patent system and the inventors who rely on it to secure to them the fruits of their innovative labors.
As the proposal to weaken patent rights on technological standards works its way through the internal processes at IEEE, and as U.S. legal authorities consider whether to approve it or not, it is important to remember that weakened patent rights is in no one’s interests. It undermines the ability of companies to invest billions of dollars in R&D and to bring new innovation (like Wi-Fi) to market. The IEEE should continue to support strong patent rights as it has always done, sustaining the fountain of economic prosperity that is the American high-tech industry.
Adam Mossoff is professor of law at George Mason University School of Law, and co-founder and director of academic programs at the Center for the Protection of Intellectual Property. Mossoff is an expert on patent law and on other property and intellectual property rights. He has testified before both the Senate and the House on patent legislation, and he has spoken at numerous congressional briefings, conferences, and at the PTO, DoJ and FTC on topics such as patent wars, standard essential patents, and the role of patented innovation in driving America’s innovation economy, among others. He has also written on issues in the patent policy debates for various media outlets, including The New York Times, Forbes and Slate.
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