Patent lawsuits are big business in the tech industry.  If you haven’t been sued—frequently—you must not be doing it right.

 

The ongoing Apple-Samsung saga is a perfect example of patent litigation gone too far. For over three years, Apple and Samsung have traded barbs in court over patents Apple argued were infringed upon. Even after the court awarded it close to $1 billion dollars, Apple pushes on. Although, the court did reject Apple’s requests to ban some Samsung products twice.   

 

This litigation, though, has passed the point of reasonably protecting intellectual property.  It has turned into a business strategy that may pay individual dividends, but is crippling innovation and technological growth on a societal scale.  The creativity it is designed to protect is too often a victim.

           

Patent wars have become patently absurd.

 

The problem is that overly broad language for relatively simple processes gets approved far too often.  When like-minded engineers arrive at a similar solution—such as running a finger across a smartphone screen to open its contents—the lawsuits follow.  Of course, the goal is not necessarily to “protect” property rights, but to slow down a competitor.

 

On the surface, such lofty disputes may not seem to carry much relevance for the average American. What do we care if a corporate giant drops $5 million in a courtroom fight? The answer should be, quite a bit.

 

The real danger of these protracted lawsuits is the chilling effect they have on the marketplace, particular on smaller technology firms who may cower away from bold innovation because of litigation threats.

 

We have reached that point.

 

President Barack Obama and key lawmakers are backing new patent reforms, saying companies are too often forced to spend money on costly litigation rather than new, innovative research.          

 

In far too many cases, the defendant is a smaller company with a better idea but without the resources to defend its innovation through years of costly litigation.  Develop a commerce site and use a “shopping cart,” then prepare to be sued. The claims of who owns what have reached an extreme.            

 

That is why this is a problem that matters to all of us.  Creativity at the startup level is thwarted by economic exhaustion.  Forget the merits; cave in or go broke.

 

Let’s be clear—a  properly balanced system of patent protections is critical to growth. It is one reason the United States is a hub of global innovation. We must be careful, though, that the system serves its purpose and doesn’t actually impede it. When laws are used as a predatory device, it’s fallen into the latter.

 

There is a better way.

 

One Senate proposal has the potential to reduce cases like Apple vs. Samsung, but it’s been a hard sell. It would expand a program letting companies go to the USPTO, instead of the courts, to invalidate bad patents — including software patents at the heart of much of today’s litigation.

 

The Supreme Court will get a chance to weigh in.  Apple and Samsung have opened a new round in their legal war, In this most recent iteration, Apple is reportedly seeking a comically exaggerated $40 for every Samsung phone sold in the U.S. it feels encroached on its patents. Meanwhile, this week the high court is hearing oral arguments in a case that could set the standards for patenting software. If the court makes an expansive decision, some of the broader patents at the center of the battle between Apple and Samsung could be rendered ineligible, Politico suggests.

 

America’s economy is built on a system of calculated risk that wherecreativity should be rewarded and protected.  Patent law should protect those principles, but when overly broad patents frequently are used as a club to stifle competitors, things have gone too far.  Let’s work together to resolve the battle outside of the courtroom.

 

Robert K. Johnson is a Greenwood attorney and consumer advocate who practices in technology and communications law.