Donald Rosenberg
Despite a plethora of lawsuits over smartphone patents, the U.S. patent system isn’t a mess, and the country shouldn’t overreact. At least that’s the expert opinion of Donald Rosenberg, general counsel of Qualcomm Inc., a San Diego-based wireless technology company.
In a letter published in Thursday’s New York Times, Rosenberg said, “It [the patent system] is far from broken. It has been the key to multiple revolutions in technological advancement throughout history. And its vital function continues today.”
The GC was reacting to a Times column by Joe Nocera earlier this month, entitled “Innovation Nation at War,” that contended “America’s patent system is a mess.”
The Times article had hailed Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit in Chicago for choosing to hear complex patent cases in an effort to change the system. The columnist said the patent system “now gives companies rich incentives to bring costly, time-consuming, and often prideful patents lawsuits. It [change] desperately needs to be done.”
Nocera also criticized technology companies for suing “competitors for billions for infringing patents that are nothing short of silly—the rounded corners iPhone, for instance.”
The column went on to accuse the industry of spending more time filing lawsuits over patents than coming up with innovative new products.
Rosenberg, who couldn’t be reached for comment Thursday, took issue with Nocera’s column. What’s really needed, he responded, is reform of litigation costs across society rather than patent reform.
The Qualcomm GC contended that patent litigation is actually declining as a percentage of issued patents. And “the so-called smartphone wars are a myth propagated by those with an economic interest in tipping the scale toward those who build on inventions versus those who invent,” the letter said.
He went on to talk of the critical role the patent system has played in attracting investment. And it wasn’t the first time Rosenberg has stood up for the system.
Last October he also wrote a letter to the Times, attacking yet another article lamenting high-tech patent wars.
The Times article, in this instance, “conflated perceived concerns about our patent system and hand-wringing about some high-profile lawsuits to conclude that innovation is threatened,” Rosenberg wrote. “Nothing is further from the truth.”
Again he cited historical trends of disputes surrounding novel inventions, from the cotton gin to the telephone. And he credited U.S. patent laws with making “us the world leader in breakthrough ideas and technologies.”
The October letter said the shift to mobile technology is defining the 21st century, and the innovation is supported by research and investment that’s motivated by strong patent laws.
And again, Rosenberg urged the country to not overreact or encourage regulation aimed at limiting inventors. “While no system is perfect, we must avoid the urge to ‘fix’ marginal imperfections with hammers rather than tweezers,” he added.
The GC is not alone in this point of view. Earlier this month, the World Intellectual Property Organization’s magazine ran an essay by Jeffrey Lewis, president of the American Intellectual Property Law Association and patent litigation partner at Patterson Belknap Webb & Tyler in New York, making a similar case.
“There is not a single smartphone in the world that has not been accused of patent infringement. People are concerned,” Lewis wrote.
But he went on to put what he called “the thicket” of patent litigation into historical context, just as Rosenberg did. Lewis concluded, “But, fear not. These smartphone wars are part of a cyclical technology event that should not be over-blown.”
With time, Lewis said, “thickets are cleared either by patent-based cooperation (licensing) or competition (lawsuits). Either way innovation continues.”
And now the patent system can find support in a study released earlier this month by the Brookings Institution, citing the economic impact of patents on geographic regions.
The study, “Patenting Prosperity: Invention and Economic Performance in the United States and its Metropolitan Areas,” is the first analysis of its kind on patenting trends from 1980 to 2012.
The inventions embodied in patents, it found, are “a major driver of long-term regional economic performance.” It said the rate of patenting has been increasing in the U.S., and now stands at historically high levels.
That’s why Rosenberg argued this week: “Let’s not overreact to a momentary uptick in commercial disputes . . . If we do, we risk irreparable harm to our knowledge-based economy.”
See also: “Brookings Report Finds Patents Driving Economies of U.S. Cities,” CorpCounsel, February 2013.
