How to detect a patent bomb in the making

If patents were people they would tell tales of ingenious transformation that would eclipse Oscar-winning movies like The Curious Case of Benjamin Button.

This month, SoftView, a small software development company, sued Apple for patent infringement. The patent mentioned in the suit is US7461353 "Scalable display of internet content on mobile devices." It was filed in January 2005 and issued in December 2008. The patent has 319 claims. This is almost 20 times greater than the average number of claims in a US patent issued in the same year! Clearly, this is a custom IP weapon of mass destruction created to attack large technology companies.

So, how was it made? As we dig deeper into the patent history, we discover that the original invention goes back to a provisional application filed in 2000. In 2001, the provisional was converted into a utility application, which issued in 2007 with 50 claims (US Patent 7,210,099). 50 claims is a relatively big number, but nothing extraordinary. It is when the initial 50 claims turned into 300+ claims things became really interesting. At this point, we could figure out that, by filing divisional patent applications with a dramatically increased number of claims, the patent owner was pursuing an IP attack strategy.

Who would be the target of the attack? Well, it's any company that provides a mobile wireless device hosting a web browser that allows users zoom and pan on web pages. Sounds like Apple to me. Or, as a matter of fact, all iPhone/iPod/iPad copycats. From 2000 to 2009, the patent owner had the time and smarts to monitor developments in the mobile industry, and fine-tune patent claims to read on one of the emerging killer features. This is not a defensive "picket-and-fence" play that is taught in patent textbooks. Rather, it's a well-designed weapon, which, as any other patent, is supposed to enable a legal attack capability. The patent has its weaknesses, but it'll take a lot of effort to deflect all its claims. Detecting a pending attack, e.g. by spotting divisional applications with a large number of claims, can be a part of an early warning system that gives companies time to develop effective defensive strategies.

As a side note, the value of SoftView patents is much greater than the value of its technology. This shows that with the right IP strategy startups can be successful even if their innovations don't materialize in the market.

tags: patent, example, problem, solution, strategy, system, payload, tool, mobile, apple