Lessons from the Smartphone Wars: Patent Litigants, Patent Quality, and Software

Forthcoming on Minnesota Journal of Law, Science & Technology (vol. 16, no. 1, 2015).

ICER Working Paper Series 5/2014

69 Pages Posted: 28 Jun 2014

See all articles by Ronald A. Cass

Ronald A. Cass

Center for the Rule of Law; Cass & Associates, PC; Boston University School of Law; George Mason University - Antonin Scalia Law School, Faculty

Date Written: June 26, 2014

Abstract

Commentators, public officials, and scholars have sounded alarms over the smartphone patent wars — hundreds of cases asserting infringement of patents by makers of smartphones and tablet computers — often suggesting broad, categorical “fixes” to problems this litigation reveals. In general, these recommendations sweep too broadly, throwing out good claims as well as bad and needed remedies as well as questionable ones. However, calls for attention along two margins promise improvements. One factor, the identity of the enterprise asserting patent rights, already is being used by courts in considering appropriate patent infringement remedies but its use needs to be refined. The other factor, patent quality — especially in software patents, where the existence of parallel schemes of intellectual property protection exacerbates quality problems — is even more critical to the way the system operates. Addressing the patent quality issue (which is distinct from patent clarity or patent notice) can do more than other reforms to reduce costs without reducing innovation incentives.

Suggested Citation

Cass, Ronald A., Lessons from the Smartphone Wars: Patent Litigants, Patent Quality, and Software (June 26, 2014). Forthcoming on Minnesota Journal of Law, Science & Technology (vol. 16, no. 1, 2015)., ICER Working Paper Series 5/2014, Available at SSRN: https://ssrn.com/abstract=2459390 or http://dx.doi.org/10.2139/ssrn.2459390

Ronald A. Cass (Contact Author)

Center for the Rule of Law ( email )

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Boston University School of Law ( email )

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George Mason University - Antonin Scalia Law School, Faculty

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