The (mis)reporting of patent lawsuits

One patent lawsuit that got a little buzz recently was Glasgow-based Picsel Technologies' lawsuit against the Apple iPhone.

CNN Money carried a short piece on the Picsel v. Apple lawsuit that used terminology that's pretty typical in reporting on patent lawsuits. According to CNN, Picsel claimed "that Apple's hot-selling iPhone and iPod Touch devices incorporate Picsel-patented technology that facilitates rapid redrawing of content displayed on devices' screens."

Now, that sentence is literally true and accurately reported. But there's a kind of breezy vocabulary around reporting on patent litigation that is quite problematic. It allows the patent-holder to strongly imply they've been copied, even though most of the time there's no copying even being alleged. Picsel is not claiming that Apple copied its patents or products, even though it's got a big incentive to put whatever evidence it has on the record.

Since there's evidence that most people believe—incorrectly—that patent lawsuits are about copying, shouldn't reporters go out of their way to clear about just what is being alleged?

How about adding: "Picsel, which does not claim that Apple copied its patent or products, is asking for a royalty to be paid on all iPhones sold in the United States." (substitute the appropriate product & damages demand; I'm not familiar with the details of this case.)

I think that gets two points across: 1) there is no copying accusation here, and 2) these allegations have an effect on consumers and the marketplace.

Does mentioning an accusation that's not there sound too defendant-friendly? I'd be interested to hear what others think. Maybe I don't have the right wording down. But it does seem problematic, and not helpful to public understanding, that the most common language used in describing patent disputes often implies what patent-holders do not have the evidence to actually say.

I give credit to CNN for at least saying "Picsel-patented technology" and not just "Picsel technology." Other patent asserters use similar phrases, like one vigorous patent enforcer who recently mentioned that Google wanted to "use the patented technology of others" without proper compensation.

When I was an intern reporter at a mid-sized newspaper in the Central Valley, I covered for the night cops reporter on a few occasions. Sometimes I would show up to the scenes of great misfortune and perform a grim and simple calculus: was there enough blood shed to knock the layout and copy desks out of their routines? There were two questions I was told to ask at every car crash that might make the news briefs: 1) was there drinking involved? and 2) were those injured or killed wearing seat belts? ("restrained" or "unrestrained" in cop lingo.)

And you reported those facts, whether they were true or false or unknown. It's not a matter of blame; it's just that alcohol consumption is often, but not always, connected to automobile fatalities; and similarly, lack of a restraining belt is often, but not always, connected to automobile fatalities. Bad things do just happen, sometimes; but there are human choices involved, too.

Isn't it time for us all to start understanding that copying is sometimes, but only rarely connected to patent disputes? I'm searching for the right words to do that.

Comments

[Eric Goldman]

Keep fighting that fight, Joe. I do think it's helpful for the media to distinguish between copyists and inadvertent infringers, and I think the seat belts and alcohol analogies are entirely apt. Eric.

[FaceInTheCrowd]

Agreed.

When enough people/companies get fed up with the assertion of a patent right, uncoupled from reality (requirement to prove copying, commercialization requirement, etc.), things will change.

Given the load that trolls are putting on the system (IV boasting $5B "under management", for example, and no signs of slowing down), it hopefully won't be long.

[Kyle Fleming]

I like the posts about reporting on how cases are reported. Reminds me of some old Brill's Content articles. As always, nice job.