This is the third in a series of articles on debates about the health of the US patent system.
SAN JOSE, Calif. — When he was head of the US patent office from 2009 to 2013, David Kappos was concerned about reports of a mobile patent war fueled by poor-quality patents. So he did a little research.
"We found at the time the [number of mobile-related patent infringement suits] were in double digits, but not in hundreds, and more than 70% of the court decisions found the patents valid, but not infringed," he said in an interview with EE Times.
"We found there was no support for [the charge of] mobile patent wars attributable to low-quality patents," said Kappos, now a partner with the firm Cravath, Swaine & Moore LLP.
The research took just one or two staff members a month or so of intermittent effort. It's the kind of work that's needed to bring clarity to a broad range of intellectual property issues as legislators once again debate patent reform, Kappos told us.
For example, some proponents of reform claim they are victims of royalty stacking when they must license multiple patents related to smartphones.
"I hear all the time the average smartphone is covered by 3,000 or 30,000 patents, so I joke, 'Why not call it 3 million?' The reality is no one has done any serious work beyond a Google patent search, and that's not proof -- they are just making fantastical fact-free statements."
In practice, "People ask for 2% royalties, but wind up getting 0.2%... so with five, six, or seven licenses, we're talking about 1% total, which is an insignificant level," says Kappos, the former head of IBM's intellectual property department. "Royalty stacking is a key area where more data is needed and more can be obtained."
Next page: Handling standards-essential patents