Another triumph for IP protection?

Respect for intellectual property (IP), or the ownership of innovation, has been the hallmark of American technological advancement. While the U.S. copyright law can be traced to as early as the year 1662, it is the case that, today, in 2015, many important emerging markets are still trying to appreciate the significance of, the need […]

Respect for intellectual property (IP), or the ownership of innovation, has been the hallmark of American technological advancement. While the U.S. copyright law can be traced to as early as the year 1662, it is the case that, today, in 2015, many important emerging markets are still trying to appreciate the significance of, the need for, and the enforcement of strict IP regulations. Intellectual property protection can come by way of patents, copyrights, service marks, trademarks, or trade secrets. It represents a right to a property and provides a financial motive for innovation, thereby representing the economic foundation of our technological progress. Moreover, patents and the like, stimulate research and product development by corporations because of the financial incentive and the limited monopoly that the patents provide for the owners.
As I pointed out in the 2 July 2012 issue of this column in Daily Trust, the scene is quite familiar on the streets of Lagos: movies, videos, films, and other creative works of art, produced by top world performers, are hawked as “hot” items and sold for pennies on the real values of the products.  Software giants, such as Microsoft, cry foul, because a large percentage of folks, especially students, have a way of obtaining computer software without paying for them. Furthermore, with the internet, China has been a book author’s nightmare, since Chinese students everywhere seem to have a way of downloading genuine copies of virtually any college textbook for free.
Take China, again, as an example. Its prior image as a country with little respect for IP protection is well-documented. On the other hand, though, as China moves up the ranks on the global scene, for example, emerging as the second world largest economy after the United States, it carries a bigger responsibility in many areas, including IP protection. China Daily in June of 2012 reminds us that China in deed has a short IP protection history; that its first copyright law was released only in 1990 – compared to 1662 in the case of America, but that the Chinese government now has a strong and determined position on IP protection.  In the 2 July 2012 issue of this column in Daily Trust, I provided a list of efforts made by the Chinese government that showed the country’s commitment to IP protection. The list contains training, regulatory and enforcement activities in China, as well as the legal system’s willingness to hear IP violation lawsuits.
Well, it’s not just developing countries like Brazil, China, India, or Nigeria that are struggling to enact and enforce IP protection laws. Even developed countries like South Korea still have some work to do in this direction. On the other hand, the U.S. takes IP violations very seriously – steal people’s IP and “face the music.” This unwavering enforcement of IP laws may partly explain why more than ninety percent of world’s life-changing innovations, at least for now, are from the U.S.
Where am I going with all this IP enforcement stuff? Well, this one is not about an individual or a government stealing stuff, but rather a business illegally copying patent items from another business – the very familiar Apple VS Samsung! Simple: Apple’s win on 17 September 2015 (last Thursday) over Samsung on an IP infringement case, in which Samsung had been accused of illegally copying some of the features of iPhone and using them, – without permissions, in Samsung’s own smartphones. To partly recover the damages inflicted on Apple by the infringement, Samsung has been ordered by a Washington court to pay $119 million. (This amount is quite small compared to the $2.1 billion that Apple had asked for.) “Samsung’s infringement harmed Apple by causing lost market share and lost downstream sales and by forcing Apple to compete against its own patented invention,” the U.S. Court of Appeals for the Federal Circuit said in the ruling. The ruling also stated that Apple was entitled to an injunction that bars Samsung from selling certain phones which had features that violated Apple’s patents. The present case had its roots from a 2014 trial in California in which a jury awarded Apple more than $119 million in damages for infringement by Samsung. However, the presiding judge in that case denied an injunction blocking Samsung from including the contested features in its devices. The court also said that the California trial court that previously denied Apple’s request “abused its discretion when it did not enjoin Samsung’s infringement.”
In the past – refer to this column on 3 September 2012 in Daily Trust, Apple had submitted a laundry list of Samsung products that it wanted the court to remove from the market. Apple has not succeeded in this – before now, but the current judgment has changed that. Although Samsung has been quoted as saying that it had ceased selling nearly all the products that were originally at issue in the case, and that it could design around the contested features, legal experts feel that Apple potentially could attempt to use an injunction to go after newer Samsung devices if they have features similar to the patents at issue. “That’s where the action is going to be,” Stanford University law professor Mark Lemley has been quoted as saying. On its own, Samsung is of course challenging the infringement ruling, as well as the monetary award to Apple.
How often do tech companies “borrow” features from patents owned by their competitors – without permission? I would say quite often, so Samsung is hardly alone in this practice. Moreover, Apple itself had been a defender in a couple of IP infringement suits in the past, with the plaintiff in one case being… Samsung! Could it be a case of “who is zooming who,” or, as I insinuated before, scapegoating?