Why your cousin Merle can't make his own smartphone

There are over 250,000 patents and 5 million claims at play inside your pocket. Many smart folks think that's a bit nuts.


Android is, at its core, an open-source software project that anybody can download and tinker with. Your cousin Merle, if he was handy with Java, Eclipse, Git, modern hardware architectures, and software design principles, could create an Android phone all on his own. So what keeps the MerlePhone from impressing us all with its simplified, plain-folk appeal? Patents, that’s what.

The Planet Money team is skillful in explaining the anti-competitive fiasco that is the software patent scene. In particular, their co-produced episode of This American Life, “When Patents Attack”, explains all the brinksmanship, the Vonnegut-evoking insanity, and quiet Texas strip-mall offices that keep smart ideas from making their way to market.

[ How to: Solve your Android problems with this fix-it flowchart ]

Smartphones are the apotheosis of What’s Wrong with Software Patents. They’re tiny devices that can do, as any ad will tell you, hundreds of useful and sometimes unimaginable things. Many of those things used to be their own industries, industries already stocked with patents. And smartphones are also major profit centers and sources of innovation today. That’s why one of every six active U.S. patents relates to smartphones. That’s why there are 250,000 active patents that cover the design and operation of modern smartphones. And each of those patents likely makes around 20 claims to protecting various smartphone designs and operations, adding up to 5 million potential restrictions against the MerlePhone.

Cousin Merle probably doesn’t have his own warehouse full of attorneys and engineers down in Clay County to review 250,000 patents and 5 million claims. Honestly, though? Even Google doesn’t have those resources, and would rather just not look at all and hope for the best. That’s explained in “The Case Against Patents,” a paper written for the Federal Reserve Bank of St. Louis:

… Companies typically instruct their engineers developing products to avoid studying existing patents so as to be spared subsequent claims of willful infringement, which raises the possibility of having to pay triple damages. Based on sworn testimony by Google’s chief of Android development in Oracle vs. Google … the engineers that developed Android were unaware of Apple (or other) patents, and so were unlikely to have been helped by them.

Google can work this run-don’t-stop strategy more effectively of late because it has its own war chest of patents in that quarter-million trove. If only Cousin Merle had bought Motorola Mobility when it was up for sale!

Truth be told, it’s mostly the biggest tech and mobility companies that can afford to swim in these murky but rich waters. The scale required to design, prototype, program, manufacture, ship, and distribute smartphones is rather imposing. But Merle’s keen ideas should at least have a shot in the market. At the least, Merle should have a shot at getting hired for them, without having to sign off on more patents that make it harder for the next Merle out there.

There is hope for the MerlePhone. Richard Posner, federal appeals court judge and University of Chicago Law School professor, wrote a piece for The Atlantic about America’s ridiculous patent system, shortly after dismissing a sizable Apple/Motorola lawsuit. Add to Posner and the St. Louis Fed a Stanford School of Law Professor, Mark Lemley. Lemley gave his arguments against the modern software patent scheme to Planet Money for their recent (and perhaps hyperbolicly titled) episode “How to Fix the Patent Mess”.

So tell Merle to hang in there, whenever next you speak or text with him on your handheld device made out of glass, silicon, and patents. Many smart people agree that the MerlePhone should be a possibility. It just takes a little while to dig a new tunnel through that mountain of paperwork.

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