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On the Hot Seat

Challenging Apple in patent court, and winning

Steven Bauer is a patent lawyer for Proskauer Rose LLC.CHARLIE MAHONEY FOR THE BOSTON GLOBE/Boston Globe

Consumer electronics giant Apple Inc. doesn’t lose a lot of fights, but the company got the worst of it in a recent patent lawsuit. Leading the victorious legal team was Steven Bauer, partner of Proskauer Rose LLC in Boston and a nationally respected patent attorney. Globe reporter Hiawatha Bray spoke with Bauer about the Apple case and the state of patent law.

You represented a plaintiff called MobileMedia Ideas. What kind of company is it?

MobileMedia is a company put together by three other companies: Nokia, which was one of the first cellphone companies; Sony, leader in sound and video; and a company called MPEG LA, probably the most successful patent licensing company in the world.


What patents were involved?

The original case had 16 patents. Three went to trial. One involved the camera phone; one involved the “ignore” feature on your iPhone — you get a second call and you’re on the phone with the first, you push ignore; and the third was what you call “call handling” — you’ve got two calls. How do you merge them together or swap them back and forth?

So the court decided that ­Apple had violated all three patents?

The trial lasted seven days, the jury was out for about four hours, and found all three patents were valid and infringed. It now goes on appeal.

Do you think Apple deliberately stole your client’s intellectual property?

We didn’t try to prove willful infringement. So we did not ­accuse Apple of willfully stealing this technology.

Steve Jobs once famously said, “Good artists copy; great artists steal.”

That’s exactly right. That’s what he says. We didn’t show that to the jury.

What kind of compensation does your client want?

They’d like to license the patents.


You’re not trying to bar Apple from using the technology?

That’s correct.

Last year, Apple and Google spent more buying patents and filing patent lawsuits than they spent on research and development. How can this be good for innovation?

It’s the free market at work. If Apple thought that $500 million was better spent on R&D, they’d spend it on R&D.

Some argue the US Patent and Trademark Office issues patents for trivial innovations that should never have been approved.

Here’s the real problem. You have one patent system for all technology, and nobody knows of an easy way to have different laws for different technologies. The pharmaceutical world and the biotech world — the patent system, they think, works just fine. One patent on a drug lasts for 20 years. They’re perfectly happy with that.

The technology world says, our technology changes every three months. Why are we being sued on patents issued 15 years ago? But you can’t create different sets of rules.

Some technology patents ­focus on incredibly subtle details, like the way an on-screen menu moves when you touch it. Should companies be able to patent a feature that trivial?

That goes to the value of the invention, not the patentability of the invention. The patent office gives you the same patent whether it’s valuable or not.

A federal judge recently refused to stop Samsung selling phones that violate some ­Apple patents, because the patents covered minor aspects of how the phone works.


What she said, as I understand it, is you can’t prove that people are buying the phone because of these features, and therefore I’m not going to stop the sale of the phone. She could have told them to stop using the feature. That happens all the time. And that’s where innovation comes from. Then you are highly motivated to come up with something better.

What about “patent trolls” ­— companies that invent nothing but buy patents and use them to sue businesses?

That is arbitrage. Arbitrage is looking for inefficiencies in the system that you can take advantage of. They have found the greatest inefficiency in the court system. They come in and they say, “I have money to litigate. It will cost you a lot of money to defend. There’s this big gap in efficiency. Instead of you spending a lot of money to prove you’re going to win, just give me the money.” In principle it stinks.

How would you fix the system?

We need a way to screen these cases in the courts earlier, so that if the patent is bad, we can decide that well before we spend a million dollars going to the jury.