Fernando Fischmann

Innovation: The shape of things to come

24 October, 2014 / Articles

Innovation. Michael Malone of the Wall Street Journal recently wrote that major tech companies are more often buying the “inventiveness of others” than innovating themselves. Several companies have been distracted by litigation, or the threat of litigation, causing them to invest their energy and resources in litigation rather than in the successful commercialization of innovation. While recently Apple and Samsung agreed to drop litigation between them internationally, which seems smart given slowing growth rates of Apple’s small number of smartphones and the growing demand for larger screens, Apple’s domestic patent litigation persists.

Much of that fight has been over “design patents,” which cover visual, not functional, characteristics of an item — perhaps a change in looks but not much more. Such patents, and their rapid growth, have been the root cause of much tumult in the patent world. In fact, according to the Patent and Trademark Office, the number of design patent applications jumped by 40 percent since 2009, with the 700,000th design patent issued in March. As these statistics indicate inventors have been increasingly relying on design, rather than other patents.

When design patents began they typically covered an entire product and any infringement needed to be intentional, so for infringement to occur the entire product would need to be copied intentionally.  Now design patents are granted on small features of a product, such as rounded corners on a phone, which obviously increases the number of possible disputes even while devaluing major innovative advances.  Today smartphones are a complex web of hundreds of thousands of patents, held by hundreds of organizations with design as only one piece of the whole.  The patent system is straining to keep pace with modern technology. 




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