Since so many companies use Linux, Mueller predicted that the jury verdict will convince more companies to pay royalties related to the use of the open-source operating systems. He also predicted that Google might need to modify the Linux kernel that it distributes with Android in order to remove any patent-infringing code.
In general, patent attorneys said they don't expect many jury verdicts in the smartphone battles. Instead, most will be settled.
"In reality, most of these lawsuits go away, and the statistical reality in the [intellectual property] and business world is that these cases are settled 95% to 98% of the time," Stein said. "A lot of these suits are threats, and threats grab headlines."
In addition to smartphone suits filed in federal courts, some entities are turning to the U.S. International Trade Commission, which takes precedence over the federal courts and can grant injunctions allowing U.S. customs agents to seize property before it enters the U.S. "The ITC is very powerful, and if a patent case wins there, the ITC is definitely going to stop companies" from bringing specific products into the U.S., Delaney noted.
History of smartphone patent wars
James Madison, the fourth president of the United States, probably never envisioned anything like today's smartphone patent wars when he proposed language in 1787 to the Constitutional Convention protecting copyrights to literary authors. That recommendation led to Article I, Section 8 of the U.S. Constitution, which is commonly called the Copyright and Patent Clause: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to respective writings and discoveries."
The Copyright and Patent Clause led to the creation of the U.S. Patent and Trademark Office and is the basis for many judgments in federal courts.
Specht cited many spectacular patent battles in U.S. history, including disputes over sewing machine patents in the 1800s and years of lawsuits over the telecommunications and telephone patents that began with Alexander Graham Bell's U.S. Patent No. 174,465 for the telephone more than 100 years ago. There were also desktop computer patent battles between Apple and Microsoft in the 1990s.
The smartphone battles are helping to bring new dimensions to patent disputes.
For instance, intellectual property laws and traditions are different from country to country, Specht noted. "In the U.S., we protect intellectual property rights, which is historically not the same as in Asian countries, where copying was often a form of flattery and not a violation of law," he said.
Also, Specht noted that while the value of the worldwide smartphone market exceeds $100 billion annually, the profit margins are shrinking and thus competition is intensifying. Those factors mean that "gaining an advantage through patent licensing royalties or making it more costly for a competitor are critical," Specht and Perry recently wrote.
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