The New Rent Seeking?

The New Rent Seeking?
July 14, 2014

Bartlett Cleland

Bartlett Cleland is the Managing Director of Madery Bridge Associates, public strategy firm... (read full bio)

According to data released this week, Samsung and Apple make up the majority of the top 20 global smartphone models sold in the first quarter of 2014. While that success demonstrates the robust market prowess of these smartphone manufacturers, the real winners are the customers, getting more services, better products and lower prices. Almost the exact opposite happens when companies resort to lawsuits to gain market advantage, a sort of rent seeking via the courts.

Apple’s long-running lawsuits against Samsung continue despite, or perhaps because of, their mixed results. In the first Apple-Samsung lawsuit, Samsung was forced to pay its rival nearly $1 billion in damages, plus an International Trade Commission exclusion order imposed an importation ban. Apple also sought a full-sales ban on the Samsung products in question, which a judge ultimately blocked.

In a second trial, Apple sought sky-high damages of $40 per device for all Samsung devices sold in the U.S. that were named in the lawsuit, and sought to block the sales of Samsung products. While substantial, that dollar figure likely paled in comparison to the opportunity costs incurred by this fixation on legal action.

In the end, the jury decided that Samsung relied on some of Apple's patented technology, but Apple too was caught using Samsung's patented technology. The jury awarded Apple financial damages but not nearly the amount the company sought, which was further offset by an award to Samsung. The decision has been appealed both by Apple and Samsung, with Apple still trying to block Samsung sales, and with Samsung appealing the verdict in total.

If this litigious acrimony continues unabated, consumers, mobile innovation, and perhaps even the companies themselves will suffer. One sign that such damage has already occurred is that technology industry news increasingly seems to be about litigation rather than about new technological advances. And according to observers, Apple innovation may already be flagging.

Moreover, courtroom victories do not necessarily translate into benefits for consumers because they could drastically limit competition in the mobile marketplace. Instead of gaming the courts for potential advantages or trying to ban certain products, mobile device makers should compete in the open marketplace.

The ongoing dispute also raises broader questions about damages awarded in patent cases, particularly for design patents, and especially when the infringement is unknown. In real time, the courts are actively issuing new rulings guiding what is and is not patentable, such as abstract ideas tied to computer systems. Are awards that are so large that a company’s ability to compete is hampered good for consumers or the marketplace?  Are absolute bans on the products in the marketplace best for the free market?

When disputes do arise, companies should put their customers first by negotiating in good faith with their rivals, going to court only as a last resort. Of course, legitimate disputes, including important claims such as intellectual property infringement, may still need a judicial remedy, just not as a first option to hamper one’s competition.

[Originally published at The Institute for Policy Innovation]

Bartlett Cleland

Bartlett Cleland is the Managing Director of Madery Bridge Associates, public strategy firm... (read full bio)