The Patent Wars May be Cooling, But They’re Far From Over

Josh Valcarcel/WIRED

Patent trolls are still hard to slay.

This week, a court ordered Samsung to fork over $15.7 million to a company called Rembrandt Wireless Technologies, ruling that the mobile phone maker has violated Rembrandt patents in using the Bluetooth wireless standard to transmit data. Samsung is also required to pay ongoing royalties on all its Bluetooth 2.0 products for the life of Rembrandt’s patents.

Rembrandt is a patent assertion entity—or, in the popular vernacular, a patent troll. These companies buy up patents, and rather than put these patents to use building new products, they sue companies for infringement. Recently, after many years of seemingly egregious patent troll wins, the tide shifted against these companies, with a big ruling from the Supreme Court and big moves from Apple and others. But clearly, the patent wars are far from over.

Last June, the Supreme Court ruled on Alice vs. CLS, deciding that ideas alone can’t be patented, only specific implementations of those ideas. And in December, a coalition led by Apple, Microsoft, and other tech giants sold off a portfolio of patents that it had previously used to sue Google and its partners, including Samsung, bringing an end to a particularly ugly patent battle.

But while Alice vs. CLS may help prevent the most egregious cases of patent trolling, the Rembrandt ruling—along with the recent ruling against Symantec—shows that there’s still ample room for trolls to operate. Though sometimes patents cases are clear cut, many are more ambiguous.

The Bluetooth case revolved around patents filed by inventor Gordon Bremer in 1997. The jury decided that certain features introduced in Bluetooth 2.0 in 2004—specifically Enhanced Data Rate—violated those patents, which are now owned by Rembrandt. The company also sued BlackBerry for infringement, and settled out of court.

Ars Technica reports that although Bremer didn’t market any products based on those patents himself, he did shop the ideas around to various technology companies.

Companies like Rembrandt, which will pay Bremer a percentage of the settlement, claim that they’re helping small time inventors get fair compensation for inventions being exploited by large technology companies. “Justice was done here,” said Demetrios Anaipakos, a partner the law firm Ahmad, Zavitsanos, Anaipakos Alavi & Mensing, which represented Rembrandt, in an announcement this week. “The Rembrandt inventions are at the heart of Samsung Bluetooth capabilities.”

But critics argue that they’re harming innovation by filing frivolous lawsuits and making it difficult to create new products without fear of litigation. “This is a classic example of patents as an attack on innovation,” says Electronic Frontier Foundation staff attorney Daniel Nazer. “There’s nothing to suggest that this guy contributed anything to the [Bluetooth] technology we used today.”

What makes this case particularly troublesome, Nazer says, is that it’s hard enough for companies to converge on an industry wide standard like Bluetooth without companies from outside the standardization process stepping in with lawsuits. “When [companies] create products and put them on the market—even if they haven’t copied someone else’s work—they’re going to be subject to all sorts of suits,” he says.

The good news for Samsung is that it can still appeal the decision.