Patents on Mobile Phones
Our previous post gave an introduction to the Freedom 251 phone controversy and how it is making waves in the IP quarters. Now let’s analyze things from the patent perspective. Reports published in January, 2016 indicate that India’s mobile subscriber population has crossed the 1 billion mark and is growing. India also is home for the second largest population in terms of Internet user base, overtaking the US. Statistics as of December, 2015 indicate that out of the 402 million internet users in India, 306 million accesses internet from their mobile devices. Clearly, India is a hot market and there is no wonder why domestic as well as foreign mobile manufacturers are flooding our market. Now it is in this ocean that Ringing Bells is set to take their swimming and surfing lessons.
According to a study conducted by WIPO in the year 2012, the following technology clusters are critical to the Smartphone industry:
|Mobile Data Access||Touch Screen Technology|
|Mobile data transmission||Object oriented Operating System|
|Image Processing||Positions system|
|Antenna||Speech Signal Compression|
|Ciphering data in a radio system||Object Oriented Multi-tasking|
|Data Structures||Quality of speech representation|
|Virtual Machine Instructions||System for transporting information objects|
|Even distribution in OS||Improved system for initializing static arrays|
Smartphone patent wars have played a significant role in making intellectual property (IP), and particularly patents, a well known term for the public, especially in countries like India. The Ericsson patent cases can be cited as an example. As of 2013, Ericsson held 33,000 patents worldwide, which include patents that cover various Smartphone technologies, and they sued many competitors in India, claiming damages for alleged patent right violations. Other major players such as Apple, Sony, Google and Samsung also hold patents that help them overpower their competitors to gain financial as well as market advantages.
As of now, it is not clear if Ringing Bells has sought patent protection, or has secured permission from any patent holder, for any of the technology being used in Freedom 251. From what we have witnessed over the years, we can say that Ringing Bells may have a tough time ahead if necessary permissions and protections are not secured.
Designs and Copyright Protection
Businesses thinking of protecting their new goods/services through IP will generally first try to get trademark or patent for goods/ services . However, for certain products, design rights can be the effective means to protect an innovative shape, appearance or ornamentation. In particular, design protection may be recommended for products that use their design to differentiate themselves in their market. The Apple v. Samsung litigation has highlighted the powerful role these rights can play in protecting the aesthetic features of IT products, specifically mobile phones.
A lot of thought goes into giving a Smartphone a distinctive look and feel. However, the look and feel elements of digital products, i.e. smartphone, are relatively easy to copy. Lately, we have seen many Chinese companies producing cheap mobile phones by copying the design of Apple phones (iPhone). Most companies rarely sue people for design patent infringement unless something is actually a counterfeit like Apple did against Samsung.
According to the Design Act, 2000 ‘Design’ means only the features of shape, configuration, pattern or ornament or composition of lines or colour or combination thereof applied to any article whether two dimensional or three dimensional or in both forms. For a product to get design protection, it is required that the design should be new or original, not previously published or used in any country before the date of application for registration.
The “Freedom 251 phone”, according to a report, is found to be violating Apple’s copyright. All the icons of the built-in app seem to be complete rip-offs of Apple’s copyright protected iOS icons. Considering, the news that’s doing the rounds that Freedom 251’s design is unoriginal and that the company has not taken appropriate licenses other companies, the chances are likely that the company might not file for a design and/ copyright protection. However, their chances of being sued by companies such as Apple are likely, if they are found to be in violation any IP rights.
Infringement as a Strategy
Unless there is a court order prohibiting a company from making a product that infringes IP of third parties, nothing stops a company from launching an infringing product. Assuming in this case that Ringing Bells is infringing patents, design patents and other IP of third parties, the company can be stopped only if a court order is acquired against Ringing Bells. We wonder why Indian Cellular Association and others are seeking Government intervention or non-intervention.
Also, until the product is available, it would be difficult to ascertain if Freedom 251 is actually violating any IP/Patents and how many IPs it is infringing. Litigation is bound to erupt from the 4 dollar phone, and it is only a matter of time before the price goes up. Having said that, it is possible to keep the price low by various means ranging from subsidies to strategic licensing deals. Will it be as low as it is today? Only time will tell.
From another dimension, it will be interesting to hear from anti-IP groups. They will surely use public consciousness, national sentiments, patriotism, and so on to stand by Ringing Bells and Freedom 251. Will they pick some elements from their pharma-public interest arguments and use them here? It will be difficult, but you never know.
Respect for Patents and other forms of IP
We hope this controversy will finally end in mutual benefit for IP holders as well as Ringing Bells. It has surely drawn international attention and proved that India can make cheaper products with good quality. Ignoring Patents and other forms of IP, or not respecting them appropriately, can prove to be fatal for Make in India.
Make in India; and
Make IP in India.
We must refrain from-
Infringing in India; and
Making IP a joke in India.
Authored by Dr. Kalyan C. Kankanala (Managing Partner, BananaIP Counsels) Naveen KM and Sambhabi Patnaik.
Contributed with the support of the Patents and Trademark divisions of BananaIP Counsels. For any IP queries, please write to us on [email protected]/sinapse.