Smartphones: Patent wars set to continue Apple's $1bn legal victory against Samsung last summer was hailed as a watershed moment in the wide-ranging smartphone patent wars. But less than a year later, the decision is looking more and more like a high-water mark that may never be surpassed. Judge Lucy Koh: jury damages based on flawed methodology Judge Lucy Koh, who oversaw last summer's trial, has vacated almost half of the damages that the jury awarded to Apple, saying its methodology was flawed. A new trial could raise or lower the final amount the iPhone maker receives. In the meantime, the US Patent and Trademarks Office has suggested that some of the patents Apple's case rested on may be invalid. IN Engineering the Future 2013 Many patent battles continue to rage between many other technology companies over smartphone designs, including Microsoft, Google's Motorola and Nokia. Yet in the US, and around the world, few have resulted in significant device bans or damage payments on the scale of even Apple's reduced level. "What at the outset might seem to be a meaningful victory really doesn't do anything," Erin-Michael Gill, chief intellectual property officer at MDB Capital Group, a patent-centric investment adviser, said of the blockbuster Apple-Samsung verdict. If anything, this has lit a fire under a very substantial competitor. There is little evidence that the patent wars have slowed the pace of innovation, experts say. Yet for now at least, the legal campaigns largely continue in the hope of an injunction that would block a competitor's flagship handset from sale, or a royalty agreement to avert such a move. "Because of the size of the markets that these players are addressing, if any one company was able to obtain significant meaningful leverage over any one of their rivals [the defeated party] would have to enter into a meaningfully negative licensing agreement," says Mr Gill. We are talking tens or hundreds of billions of dollars over the course of five to 10 years. In that context, he adds: "Half a billion dollars in a judgment doesn't move the needle." Those people adjudicating technology patent trials see things differently. The scale and protracted nature of the smartphone patent wars, which have consumed so much of the US legal system's time, has prompted some judges to call for reform of the country's entire patent system. "We need to have different time periods for different patent technologies," said Arthur Gajarsa, former judge on the US court of appeals for the Federal Circuit. Software is an area that needs to be looked at. When you have a 20-year time period for a software patent, I wonder if it is necessary for that particular purpose. Judge Richard Posner, of the US Court of Appeals, has said that there is "just no good reason why we would give a monopoly to an inventor," unless the upfront costs are so high that "the invention wouldn't be made" without the exclusive rights to recoup the investment. "These conditions are very rarely encountered in the real world," he added. One area the judges particularly complained about is so-called "standards essential patents" (SEPs), which are licensed for use in everyday technologies that form the foundation of devices such as smartphones or PCs. Although the multiplicity of patent cases around the world has produced too wide a variety of results to generalise, one trend is that legal battles over SEPs and the setting of royalty rates have not gone well for those asserting their rights. In a recent filing to the US Federal Trade Commission, Apple said that Google had lost nine out of 10 SEP cases against it, while Samsung had won just one in eight. Perhaps with this in mind, Microsoft has largely taken a different approach to enforcing its rights over its large portfolio of intellectual property. Rather than taking legal action, it has in many cases struck licensing deals, including with Samsung, HTC and almost every smartphone maker to use Google's Android operating system. "Microsoft has shown how protecting your intellectual property through licensing is far more productive than engaging in expensive, time-consuming and unpredictable litigation," says Peter Detkin, co-founder of Intellectual Ventures, a large holder of US patents. Microsoft may not have seen huge success in the smartphone software market, but its approach to IP may prove forward-looking. Professor Adam Mossoff, patent law expert at George Mason School of Law in Virginia, says that despite the apparent rush of litigation, history suggests such agreements may eventually become more common in the smartphone industry. "Patent wars are nothing new," Mr Mossoff says. They go all the way back to the sewing machine war of the 1850s ... I firmly expect, based upon past historical instances of the tens of patent wars that have occurred, that the smartphone patent war too shall pass. Very few of these previous conflicts, which have included disputes over lightbulbs and disposable nappies, have resulted in an outright "winner," Mr Mossoff says. "From the nature of the smartphone wars and companies involved, I'd expect you'd see less of a single victor and more of a patent pool or private solutions, such as settlements and cross-licensing agreements," he says, which was the outcome of the argument between sewing-machine makers. However, one factor is different this time: a rise in lobbying in Washington by the technology companies and subsequent efforts to reform patent law. Defendants may be less likely to settle if lawmakers are proposing a change that could affect their case, Mr Mossoff says. "This may be a new component that is aggravating and drawing out the smartphone war," he says.