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In the Apple suit against Samsung, Rothman of Arnstein & Lehr said he was surprised that the two parties hadn't come to an agreement earlier. Other IP experts agreed, noting that such monumental cases often end with no clear winner.
"There is no mandate for Apple and Samsung to reach an agreement," said U.S. patent agent D'vorah Graeser, CEO of Graeser Associates International. "Apple and Samsung could easily each obtain a Pyrrhic victory, in which neither can sell all of their existing products as they are but must instead change them to accommodate the patents of the other side -- with the consumer clearly losing out."
Although trials may seem frivolous and lengthy at times, bringing these disputes to a judge and/or jury is a better option than government intervention. The optimal solution, noted Graeser, would be driven from within the tech industry.
"The industry needs to decide that it is better to cooperate on at least some levels. Currently, each company seeks to dominate the others with regard to cellular telephone," Graeser said. "Standards bodies, such as the IEEE, show that it is possible to cooperate for the mutual benefit of all industry players -- but this has to be an outcome desired by the industry itself."
Years ago, antitrust suits were all the rage, said Rob Becker, co-chair of the Intellectual Property practice and chair of the Patent Litigation and Prosecution practice at Manatt, Phelps & Phillips, and today it's patent infringement cases in the spotlight.
"One thing I've noticed is that this is a pendulum. For a bit, decisions are favoring patent holders and then they go the other way," said Becker. "It's a delicate balance where we protect rights, but not [too much], so that we don’t stifle innovation."
The dilemma is a double-edged sword. If patents are too broadly defined, companies will shy away from investing in research and development, fearing their work will put profits in the coffers of competitors. But, too narrow of a definition means similar innovations will be patented, resulting in more litigation and fewer licensing deals. Both result in less incentive to innovate.
The ultimate patent infringement penalty is an injunction, whereby a company can be prohibited from conducting specific business. In Apple v. Samsung, Samsung could have been barred from selling its Galaxy Tab in the United States. However, the jurors did not find that Samsung's Galaxy Tab 10.1 tablet PCs infringed on Apple's iPad design patent.