Who cares who the real patent winner is in the Alcatel-Lucent v. Microsoft fight?
Although these are big names, Microsoft, Alcatel-Lucent, who really cares who ultimately wins this case? It’s just one big company fighting with another big company over things most people don’t understand. Large sums of money are spent arguing over who owns the rights to what technology or a specific modification, tweak, or variation of a technology; technology that is obscure for the majority of us to understand. Unless you have advanced degrees in materials design, engineering, chemistry, or some associated degree, understanding what is “patented” is extremely difficult.
Not only that, but the cases never seem to end. Currently, Microsoft lost the multi-year court battle against Alcatel-Lucent to the tune of $367million in damages. A few days ago, a jury decided that Microsoft had infringed on two of Alcatel-Lucent’s patents, but had not infringed on two other patents. The infringed patents covered touch screen technology. Right after the verdict was announced, Microsoft stated that they would be filing an appeal. Appeals can take another 2 to 10 years depending on a variety of factors. While Microsoft can appeal the findings of the jury on the two patent issues that it lost, Alcatel-Lucent can file an appeal on the two patent issues that it lost.
Meanwhile, more and more money is being poured into the pockets of the law firms involved. Every letter, phone call, memo, conference with the other attorney, conference with the judge, request for information and documents, preparation of information and documents is costing more and more money. All of it coming from the pockets of the share holders and the consumers. The cost for these arguments is paid for by increasing the price of the products and reducing offered dividends.
As an attorney, I know how often court cases that should have been settled, continue on for the sake of “principles”. The CEO doesn’t care because it doesn’t come out of his pocket. He still gets paid his seven to eight figure income regardless of the outcome of the lawsuit. Consumers don’t care because they don’t understand what the law suit is about. Consumers also don’t realize how the lawsuits affect the cost of the items that they buy. Granted, patents can be so broad or so narrow that it is difficult to tell if the patent really does affect the technology involved in various products without a ruling one way or the other. However, the antagonistic nature of the court system does not encourage quick rulings or cooperation in making the determination. So rather than determining patent issues quickly and deciding a fair license fee, there are long drawn out battles that take years to finally reach a definitive decision. Besides the cost in time and money there is also a loss of innovation and creativity.
On March 26th, I wrote about Dr. Gertrude Neumark Rothschild’s patent battle against such giants as LG, Sony, Nokia and others. She developed crucial processes used in the manufacture of LEDs (Light Emitting Diodes). She is just one person fighting a lot of giants. Rather than being rightfully paid for her innovation, she is having to sue the large companies. The cost of such suits is enormous and without the seemingly endless sources of money that the large companies have, she may find that she is just not wealthy enough to continue the law suits. Besides the court costs and legal fees, there is also the loss of the clients time and resources because they are required to be in court for most of the proceedings. Then the case moves into the appeal stage after the verdict is returned regardless of which way the verdict went. So the money goes even faster with higher fees.
As you can see, patent suits are a drain on an inventors resources as well as a companies resources. Rather than cooperatively trying to figure the issues out and reduce the time, aggravation and money required, the whole case shifts into “winning” which actually is “losing”, for all of us.
Rather than jumping into the court system, there needs to be some mandatory alternate dispute process like mediation or arbitration that must be utilized first. A type of litigation that is growing in family law could also be used in patent disputes. Collaborative law requires both sides to sit down with their attorneys and work through the issues together to come to a solution. The two sides must agree that they will not litigate unless they simply cannot agree. Then the two sides must hire new attorneys(including new law firms) in order to proceed in court.
What this demands from all involved, is a focus on what truly matters. Rather than spending months or years on collecting information and documents from each other, the parties agree to freely share the documents and information necessary to reach a mutually agreeable outcome. Both sides agree to use one expert to review the information and documents. This cuts down on the time and money required to hire and depose opposing experts. It also cuts out the expert witness court fees. Since both parties, and the attorneys, are working towards a mutually agreeable solution, the parties are encouraged to work cooperatively in reaching a positive outcome for all involved. The collaborative attorneys are very motivated to avoid court since their reputations and finances will hinge achieving a good outcome. The object is less “winning” than “win-win” which reduces the cost and time necessary to end these disputes and leaves more money in company coffers. The price for new technology will cease to include the ever increasing legal fees of patent fights. Share holders will be able to receive dividends or larger dividends and consumers will pay lower prices. This would truly be a “win-win” for all involved.
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