Microsoft: Smartphone wars prove patent system works

The number of lawsuits over smartphone patents proves that the U.S. patent system is working, Microsoft Deputy General Counsel Horacio Gutierrez said Wednesday.

Speaking at George Washington University Law School, Gutierrez called the recent smartphone wars “a sign of health” of the U.S. patent system because it means companies are using the system to protect their intellectual property.

Over the last few months, attention has shifted away from the smartphone wars and toward patent trolls, or firms that bring frivolous lawsuits over overly-broad patents to extract settlements, Gutierrez said. Patent trolls have “really become the theme of the conversation.” 

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On Wednesday, House Judiciary Chairman Bob GoodlatteBob GoodlatteBooker wants more scrutiny of Amazon-Whole Foods merger Dem wants hearing on Amazon's bid for Whole Foods Surveillance reform déjà vu MORE (R-Va.) introduced a bill aimed at decreasing frivolous and invalid patent infringement lawsuits. Microsoft has not commented on Goodlatte’s bill, but the company is a member BSA – The Software Alliance, which expressed concerns that the bill would weaken intellectual property rights.

“There are opportunities to deal directly with that bad conduct and bad behavior,” Gutierrez said, advocating for more funding for the U.S. Patent and Trade Office.

The office should be “given the resources it needs … so that bad patents don’t come out of the system,” he said.

Gutierrez fought back against claims that companies being sued for infringement of software patents should be able to more easily challenge those patents.

“Patents that are weak and that shouldn’t have been granted should be invalidated,” he said, but “there [are] multiple opportunities to do that.”

There are “more [opportunities] now than there have ever been,” he said.

Rather than opening up software patents to further review, Microsoft supports fee-shifting, or requiring the losing party of a patent infringement case to pay the winning party’s legal fees, Gutierrez said. Goodlatte’s bill includes a fee-shifting provision.

“We are believers in fee-shifting as a way of going to the heart of the business model” of patent trolls, as it would increase the costs of bringing frivolous infringement suits that are likely to be unsuccessful, Gutierrez said.

“We don’t think fee-shifting would solve every problem, but it would impose a kind of self discipline.”