Do the patent wars threaten innovation? Rory Cellan-Jones

Technology correspondent

@BBCRoryCJon Twitter Published duration 9 November 2011

media caption Rory Cellan-Jones investigates whether patent wars stifle innovation

The patent system - a vital part of our innovation infrastructure, and the only way that inventors can be certain that their ideas can be protected from those who who would steal them.

Or something that is tying innovators big and small in knots and befits only mischief-makers bent on making money in the courts rather than in laboratories.

That was the question we explored in a film for Newsnight last night.

These are boom times for intellectual property lawyers, as every major player in the mobile phone industry decides that patents are important weapons in the battle for supremacy in the smartphone market.

From Apple to Samsung, HTC to Motorola, everybody is suing everyone else, claiming they were the first to think of the ideas at the heart of this new industry.

But smaller players are getting caught in the crossfire. David Hart, a small software developer in South London, got a rather frightening document through the post one morning. It was from an American company called Lodsys and it accused him of using patented ideas on a some smartphone apps that translate Asian languages.

But what he really needed was an app that could translate the patent gobbledegook contained in that Lodsys document. An illustration of a telephone talking to a fax machine left him none the wiser, nor the idea that "storing results of a two-way interaction to a central location" was something that his applications had copied from the American firm.

Lodsys is a new type of business - one that doesn't actually make anything or come up with new ideas - but lives by registering patent claims and then taking court action against companies it claims have used its technology.

For those targeted by such firms there is a choice - employ expensive patent lawyers or simply agree to hand over licensing fees.

For a small business, without the resources to fight lengthy legal battles, it is deeply worrying. "It's another risk that we will now have to consider," David Hart told me. "When you do anything of an innovative nature there's a danger it won't work, that's one risk, now this is another."

What's at the heart of this is something that is much easier to obtain in the US than in Europe - software patents. For many on both sides of the Atlantic, they should not be allowed at all.

Vint Cerf, one of the fathers of the internet, seems to agree. When we interviewed him at Google, where he now works, he told us that software patents posed a real threat to innovation. "I see it as hindering innovation in a really dramatic way."

Mr Cerf looks back to the seventies when, with another computer scientist Bob Kahn, he was developing some of the key technologies that led to the birth of the Internet. He says they never patented any of their ideas.

"When we came up with this technology we deliberately did not want to make any intellectual property claims," Cerf says. "We wanted to make this an international standard - we wanted everybody to use it."

The irony is that Google itself has been assiduous in acquiring patents recently, notably through its takeover of Motorola Mobility. Vint Cerf accepts that the company he now works for is embroiled in the patent wars.

"I think it's been forced on us by the realities of the patent market, " he told us." We find ourselves needing to have patents either as negotiating tools or as defensive weapons." But he says he regrets that so much money has to be spent in this area when it should be invested in new ideas.

We found a defender of the patent system in the leading intellectual property lawyer Guy Burkill QC, who has acted for some of the giants of the mobile phone industry.

He pointed to the smartphone in his pocket as evidence ."The progress that has been made in that area is self evident and doesn't support the suggestion that the system is stifling innovation."

He explained that there was a kind of small claims court for small businesses caught up in patent disputes, which caps potential damages at £500,000. Not a sum that many small firms will be willing to risk."We need a patents system," Mr Burkill insists. 'Sometimes it can hurt, but to say you're small is no defence if you've infringed a patent."

With every day bringing news of more suits and counter-suits in courts around the world, there is no sign of peace breaking out in the patent wars. No sign either of the pace of innovation slowing in the mobile phone industry.