U.S. Bans Some Cellphones For Patent Reasons

runner_one writes "According to the New York Times, A federal agency has banned imports of new cellphones made with Qualcomm semiconductors because the chips violate a patent held by Broadcom. The International Trade Commission said today that the import ban would not apply to mobile phone models that were imported on or before June 7." Update: 06/08 13:05 GMT by KD : Glenn Fleishman notes that Apple's iPhone will be allowed into the country, since it doesn't use any 3G chips. He adds that Apple "might have the most advanced smartphone on the market unless President Bush or his trade representative overturn the ruling (which they have the power to do)."

Comments

Message to Qualcomm.

[Whiney Mac Fanboy]

Play with patent fire and you're going to get burned. Remember Qualcomm suing Nokia?, Qualcomm suing GTE Wireless, Qualcomm suing Maxim, Qualcomm suing Motorolla, Qualcomm suing Ericsson, Qualcomm suing Broadcom?

Everytime a large corporation loses a big case like this, I feel we're a step closer to sane patent reform. Hopefully someone will win a patent against Broadcomm next.

Re:Message to Qualcomm.

[arivanov]

Disclaimer: I used to work in the field (not for qualcom) and I am extremely happy no longer to.

Anyone working in the field is well aware of the phenomenon known as "visit from Qualcomm" legal department. In fact, it is a most common question asked when discussing a financial plan or investment in a wireless related SMB: "And have you had a visit from Qualcom yet?".

It is essentially the same tactic as used by IBM in the early 90-es with their PC-based patents. You are left to develop something, start a business and hopla two chaps in black suits show up with a list of patents which you have supposedly infringed. GTE, Nokia, Motorola, Broadcom were simply big enough to tell these chaps to f*** off, and fight it out. Frankly, I can bet that every single one of them fired the legal salvo after a visit from Pan Legalicus Qualcommi. In fact, in Nokia's case it is known to be so as it has happened as a result of Qualcom violating its obligations to license standardised intellectual property on non-discriminatory terms.

Re:US Patent office should pay compensation

[Henry V .009]

"The free market will fix it..."

How exactly does the free market go about fixing limited duration government granted monopolies (a.k.a. patents)?

ITC press release

[Takichi]

You can get a better idea of what happened if you read the International Trade Commission's press release. At the bottom of the page is a little background information to get a sense of what happened prior to their decision.

It says that it found a violation on U.S. Patent No. 6,714,983. Here's the link to the patent.

One thing to note is that the ITC investigates and makes recommendations to congress and the president. It's not actually a court of law or policy making body. So I think this from the article:

A federal agency has banned imports of new cellphones made with Qualcomm semiconductors

isn't really true. Especially when later in the article it states that the government has 60 days to approve or overturn the order made by the ITC.

Once again, patent system blocks progress

[iamacat]

Did Qualcomm employees actually read Broadcom's patent and use the helpful diagrams to build the phone chips? I rather suspect not - this is another example of independent discovery. I understand that the patent law doesn't allow that as a defense, as it's hard to prove that someone didn't read the publicly available patent. But the fact that it happens over and over again just shows that the current system blocks progress of art and science rather than encouraging it. We have to start only allowing patents that are judged non-obvious by leading experts in the area.

Re:Once again, patent system blocks progress

[ThosLives]

There's also the new (pending?) revisions from SCOTUS on the "obviousness" clause that changes the meaning (I hope) to "if the new 'invention' is simply a combination of existing components that does what you would expect by combining those components, it doesn't count as a patentable invention."

One-click shouldn't be a patent, because it simply chains together existing components in a way that results in the simple sums of functionality. There is nothing "new" there.

A patent on a chip that simply sums together signal detection with wake-up logic to save batteries should also not be patentable, because both of those technologies have been around for a long time.

It's only when the sum of components does not simply result in an obvious function that a patent should be granted. My test would be something like: strip the patent application of the description of what it does and the submitter and give it to a group of engineers in that field. If that small group can't determine what the invention is supposed to do within, say, 8 hours (or some other 'reasonable' time frame), then it can get a patent. Otherwise, no patent.

The problem is that people are now using combinations of preexisting ideas as patents when they shouldn't be allowed. I wouldn't even grant a patent on the optical mouse, because it's an "obvious" combination of an optical motion sensor and a computer pointing device. Now, I might patent something related to how the optical motion sensor works, but only so long as it's not simply a combination of existing components.

One sided summary

[Magnus Pym]

Qualcomm has been aggressive in promoting their patent rights. But to say
that they are unique in this field is completely ignoring one side of the story.

Every try to make something in the GSM/UMTS space? You will have about a dozen companies
approach you with their hands out. Nokia, Qualcomm, Ericcson, Motorola, Lucent, Samsung
and several others. CDMA royalties are about 5%, almost all paid to Qualcomm. GSM/UMTS
royalties sum up to about 18%. The only difference is that if you are one of the big guys,
you "cross-license" your patents so that you don't end up actually paying anything. If you
are a new entrant... well, you are out of luck.

What is pissing off the Nokias, Ericcsons and Broadcomms of the world is that in the CDMA space,
they have no patents at all. None. That is because they fought CDMA every step of the way until Qualcomm
demonstrated conclusively that it is a commercially practical technology. Then they
turned around and tried to claim it as their own, and tried to co-opt it by applying it with minor
modifications to the UMTS space.

Actually, I am amazed that Broadcomm is getting away with this. Their sum total of contributions to
the wireless space is close to zero. They have done some work in the wireline world in the early
years, but they have contributed zip, zilch, nada in the development of wireless IP. They are not
even a name in the industry. HOwever, it is possible that they have purchased some IPR of late.

I am quite happy to see cracks in the patent edifice as a whole, but making Qualcomm the villain in
this is not correct. Qualcomm laid many of the foundations for modern wireless communications technology;
Qualcomm corporate R&D is about as close as you can get to how Bell Labs used to be.
Lots of Qualcomm's IPR consists of non-trivial, non-obvious, fundamental contributions to communications
theory. Most other wireless companies, in particular Nokia, Motorola, Ericcson etc have done nothing
fundamental in the past 15 years. They are product companies whose forte consists of taking old technologies
and packaging them in crowd-pleasing form factors, or (in the case of Ericcson), maintaining relationships
with behemoth carriers.

Magnus

Re:broadcom

[Tatsh]

Why did this get rated troll? In all seriousness, Broadcom refuses to write drivers or help or anything to get their wireless cards working natively in Linux. They do not care. Currently the best way to get the BCM43xx chipsets working is to use bcm43xx-fwcutter, but that of course violates patents because it uses the actual firmware of the wireless card to work.

Re:US Patent office should pay compensation

[general_re]

Every time they issue a patent that's later invalidated, they should pay compensation for issuing the patent.

The problem here, has and always will be the over willingness of the patent office to issue patents when the invention preexists but is not documented publicly, or where it's a minor increment of an existing variation. It's in the law that they have to test for obviousness and prior art, but they so narrowly define those terms as to remove the tests.

The free market will fix it, make them pay for their mistakes just like every other professional body. I don't know what's more disturbing - the fact that you're this amazingly naive, or the fact that at least one other person out there found this tripe anything but naive. The "free market" will dissuade the USPTO from granting bad patents, will it? And how, pray tell, will it do that when the Patent Office has a legal monopoly on the granting of patents? It's not like there's any competition for them to fear, where you can go to some other agency to get a patent when you're unhappy with the way they grant patents.

And then, even better, "we" are supposed to punish "them" when "they" fuck up, by fining them. Except that, as a government agency, the USPTO always has access to the biggest ATM in the universe, the American taxpayer. So what you're really proposing is that *I* pay a fine every time the Patent Office fucks up - "we" get to punish ourselves for bad patents. Which is a proposal where I expect most people's reaction will be "are you out of your fucking mind?"

The only possible solution is to change the laws governing the USPTO if you're unhappy with the way things are currently going. I'm as laissez-faire as the next guy, but there is no "free market" solution to the problem of overbroad or poorly thought-out patents, unless you scrap the whole system. And the odds of that are basically nil, so you're back to changing the laws in order to bring about different outcomes.

Re:US Patent office should pay compensation

[mr3038]

How exactly does the free market go about fixing limited duration government granted monopolies (a.k.a. patents)?

Alternative methods to accomplish the same goal have been used as patent work-arounds from the earliest days. If not for someone working-around the Wright Brother's patents, jets would be using "wing warping" instead of "flaps."

Yes, that is a work-around. Notice, however, that the whole patent system was originally created to help sharing of information, namely inventions. If you made an invention and made it publicly available, in return the government granted you a limited monopoly.

Nowadays, this has twisted into reality where government grants you a monopoly and you absolute do not share your "invention". Instead, you use your monopoly to prevent related innovation by others. The government grants you (limited) monopoly and in return you share a piece of document that, more often than not, shares zero information about the real invention you possibly did. In case of software, the only thing that really could describe your invention correctly would be the source code. However, that is not required to get a software patent. That's where the problem is - you can get a patent to protect your invention without disclosing that very same invention.

Re:US Patent office should pay compensation

[Dunbal]

Like it or not, patents are a mainstay of the US economy.

      So, uhhh, how many years before the US economy expires?