Categories: Articles

A Confederacy Of Patent Dunces

Things are about to get a whole lot more stupid.

There was a lot of online chatter when Google acquired Motorola for $12.5 billion. With Apple and Microsoft developing mobile devices (smartphones and tablets), it made perfect sense for Google to follow suit (and they struggled with their own iterations of Android devices). Others figured that the acquisition had much more to do with the patents that Motorola owned. This way, should Apple (or another brand) ever take a legal swing at them, Google could do the old Muhammad Ali rope-a-dope with those patents. We live in the day and age of patent trolls and lawsuits (just look at the billion-dollar-plus verdict Apple was awarded over Samsung last week). Even the most geek-aware struggle to understand the full force of litigation that is now taking place over technology-based patents.

Stealing is stealing.

Should a brand have a right to copy and use another brand’s intellectual property and merely shrug their shoulders if they get called on it? Absolutely not. Then again, Robert Scoble noted in an online post: the price of admission could be worth it. Samsung will pay a billion dollars in fines, but their moves made them a prime smartphone manufacturer. It cost Microsoft $8.5 billion to buy Skype. What did that get them in relative terms? Personally, I see no issue with brands defending their IP. That being said, we’re seeing more and more cases where individuals and companies have secured patents that could – in all seriousness – bring a brand to its knees.

The end of mobile marketing (before it even gets started).

My jaw hit the floor today while reading the article, Mobile patent fees a ‘tax for being on the Internet’, which was featured in the The Globe And Mail‘s law page. It turns out that if your brand sends out a text message with a Web link in it to a mobile device, you are sunk. That "technology" is a patent owned by Richard Helferich since 1997. He has several patents in and around that method of message delivery. So, guess what that means? Yup… he’s suing. "Since 2008, his company, Helferich Patent Licensing, has filed 23 suits against companies ranging from Best Buy Co. Inc. to the National Basketball Association, claiming they are infringing on his intellectual property."

But wait, it gets even crazier…

The article goes on to say that his company offers these patent infringers a one-time fee of $750,000 to settle. And, guess what has happened? Yes, about one hundred companies (like Apple, Disney and McDonalds) have happily settled. The argument is that businesses have no right to use the intellectual property of Helferich who earned it, so instead of litigation, brands are paying this as a sort of "cost of doing business." The article goes on to discuss a lawsuit (which is being led by The New York Times) to put an end to this. Yes, The New York Times (and many other brands) have stolen IP from HPL if they have ever sent a text message with a link to a website in it.

Ouch!

Patents and maintaining one’s intellectual property is a critical component of any democratic and capitalistic society. While patent systems were established to protect our rights and, as the article says, "views its role as vital to the growth of the U.S. economy," it’s also important for all of us – as part of the democratic process – to rise up when companies are capturing patents without providing any services or producing any products. But I’m not sure (call me a flip-flopper). If you have a unique idea and you patent it, do you have to actively use the patent or should you be allowed to leave them dormant for as long as you like?

It’s fascinating. It’s frightening.

Did you know that if you send a text message with a text link in it that your brand could be sued? I didn’t. How many other marketing processes might you be engaging in that may – in some way – be an illegal use of someone else’s intellectual property? The New York Times-led lawsuit is not going to be settled any time soon (the article says that the lawsuit will go on until the middle of next year), and we’re not even talking about appeals and the like. As always, you can imagine the many patent lawsuits that are still ongoing, and the ones that are just around the corner.

Over to you: is this stuff stupid, scary or something we all need to pay a lot more attention to?

Mitch Joel

Mitch Joel lives at the intersection of technology, business transformation and consumer culture. He is the Executive Director of Next Era Institute, a strategic intelligence platform helping leaders understand the forces reshaping business, technology, culture and society. The Institute identifies which shifts matter, explores their wider significance and translates them into strategic direction and momentum. Mitch is also a globally recognized keynote speaker. He has delivered thousands of presentations across both B2B and B2C industries to organizations including Google, Walmart, LEGO, Shopify, Microsoft, Procter & Gamble and Unilever. Strategy Magazine has called him “one of North America’s leading visionaries.” Mitch built his career by working directly inside the waves of change that reshaped modern business. He founded and built a digital marketing agency that worked with some of the world’s largest brands and was later acquired by WPP, where he served as President of a firm operating in 25 countries with almost 3,000 employees. Mitch is the bestselling author of Six Pixels of Separation and CTRL ALT Delete, and the host of Thinking With Mitch Joel, one of the longest-running business podcasts in the world. His writing and commentary appear in outlets including Harvard Business Review, Fast Company and Inc. Magazine. He is a member of Dr. Marshall Goldsmith’s 100 Coaches and was named to the Thinkers50 Radar. Mitch also hosts Groove – The No Treble Podcast, documenting the oral history of electric bass players. Mitch is also Co-Founder of ThinkersOne, a platform that enables companies to bring personalized thought leadership from world-class experts into meetings, events and off-sites in focused 15-minute bursts.