As we all know the current trend in “patent” disputes is to try and bar the sales or imports of the offending product. The problem with this strategy is that it accomplishes nothing in the long term, except to stifle competition, innovation and remove choice from the consumer market. Some of these patents are ridiculous in the first place (Come on USPO, really…. Giving Apple a patent on autocorrect or slide to unlock? Did you do ANY checking for prior art???) and should not be allowed in any attempt to outright block the import or sales of a product.

On the opposite end of the spectrum are that patents that involve technology considered to be essential to making a particular series of devices. Here we have items that are agreed upon as standards, yet companies try to use them as leverage to block sales or imports of other products. The whole system gets really confusing when someone uses a dodgy patent to try and block a product and the other company uses an essential patent to counter attack and ask for a ban on the original companies products. (yes we are talking about Apple, Samsung, Google/Motorola and Microsoft).

Right now the move only encompasses standard essential patents, but this is still the right direction.

"Simply put, we are concerned that a patentee can make a RAND [reasonable and nondiscriminatory] commitment as par of the standard setting process, and then seek an exclusion order for infringement of the RAND-encumbered SEP [standard essential patent] as a way of securing royalties that may be inconsistent with that RAND commitment,"

"Hold-up and the threat of hold-up can deter innovation by increasing costs and uncertainty for other industry participants, including those engaged in inventive activity. It can also distort investment and harm consumers by breaking the connection between the value of an invention and its reward -- a connection that is the cornerstone of the patent system,"

Now there is an interesting question on the table, why would the FTC comment on this now? We do know that the ITC asked for their input on this, but why now? After all this is not the first time that a company has requested a ban for an infringing product in the US (or even overseas) and why do they not specifically cover the concept of all import and sales bans?

A product ban of any type is bad for consumers unless it is for a complete copy of a product (and we mean identical). To ban a product or range of products for a small amount of the technology that make up the product is exceptionally harmful to the consumer and the market. It is simply a strong arm tactic to remove the competition. Just look at what Apple’s ban on HTC phones for a single patent is doing to the company and the market.

These types of requests need to be stopped and the patent system as a whole needs revamping. The US Patent Office needs to be more accountable to the granting of patents and if it is found that they did not perform due diligence there needs to be some sort of consequences to them. Perhaps this will stop them from allowing patents for technology with obvious prior art, as well as patents on “look and feel” or ambiguous patents on broad definitions. The ITC and FTC also need to be more accountable as they decide these cases; the first thing that needs to be established is potential harm. In the case of a product or range of products that might infringe on a single patent someone needs to see how important that patent is to the operation of the product. If it is not, then there should be no grant of a ban.

There also needs to be someone to check into companies records of litigation. At what point do continued requests for bans or product stop being protecting IP and start falling under the anti-competitive laws that are supposed to protect consumers? A perfect example of this is Apple’s request to add the Galaxy S III to their ban request with the ITC. That request was filed in February and the S III launched in May… Apple wants to ban it based on a links for structures patent and a unified search patent. Oddly they are claiming that S-Voice violates the unified search patent when they are using a service that actually predates Siri… Vlingo (Vlingo has been around since 2006 as a voice activated assistant). So how could the USPTO have granted the unified search patent to Apple when Vlingo already had a few to cover that?

No matter how you slice it Bans on products are no longer being used to protect intellectual property, they are being used to block competition, stifle innovation and to harm consumers in the end.

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