©2016. Published in Landslide, Vol. 8, No. , March/April 2016, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
For a number of years, the “smartphone wars” have been blamed, at least in part, for causing a broken and chaotic patent system. These cries of crisis reached their peak in the summer of 2012, when Judge Posner, sitting by designation, ruled in one of the then pending Apple v. Motorola cases,1 and, as reported by the New York Times, observed that “[t]here’s a real chaos” in the patent system.2 In reporting on patent litigation between Apple, Samsung, Motorola, Microsoft, HTC, and others—i.e., the smartphone wars—the New York Times further recounted views of industry participants that the patent system is “so flawed that it often stymies innovation,” and that it is “corrupted by software patents used as destructive weapons.”3 As one organization observed, “[t]he patent system is broken” as evidenced by patent owners’ attempts in the smartphone wars to extract damages and seek injunctions by asserting software patents and patents essential for the implementation of technical standards, i.e., standard essential patents or SEPs.4
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