The recent Techdirt article about Microsoft's design patent on a slider understandably focused on the absurdity of companies being forced to hand over all of the profits that derive from a product if it is found to have infringed on someone else's design patent even in just a tiny portion of that product. But there's another angle worth mentioning here that picks up on something Techdirt has written about several times before: the rise and threat of patent thickets. Back in 2012, it was estimated that 250,000 active patents impacted smartphones. That makes it impossible to build devices without licensing large numbers of patents, and even then, it's likely that claims of infringement will still be brought.
The underlying problem is that patents were originally devised for a complete, self-standing process or invention. For example, some of the earliest patents were those granted in fifteenth-century Venice for glass making. Over the centuries, invention has become atomized, with smaller and smaller elements being granted patents. These are not, in general, useful on their own, but must be combined with other components to make something useful.
That process of atomization has reached its peak in the world of software, which is typically made up of thousands of smaller software parts. That's in part why computing has emerged as the field most plagued by patent litigation: if you own a patent on a key element that is required for the other software parts in a product to work properly, you are in a very strong position to force manufacturers to pay you for a license.
The situation described in the Techdirt article about Microsoft's slider shows that there is a risk that the consequences of atomization in the field of design patents, where even tiny, obvious elements are awarded a patent, could be worse than for "ordinary" utility patents. That's because of the high level of damages based on the total profits derived from an infringing product, irrespective of the importance of the design element in question. Let's hope the Supreme Court decides to take this case, and comes out with a sensible ruling that heads off the danger of disproportionate damages. If it doesn't, we can probably expect trolls to move into the design patent world in a big way -- and for real innovation to face even more hurdles than it does at present.
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