Smartphone Patent Litigation Continues Unabated

The latter half of 2010 saw an explosion in patent litigation centered around “smart” mobile phones and their operating systems. As the year draws to a close, this trend shows no sign of slowing down – the latest move came yesterday, when Interval Licensing LLC, a patent holding company, filed an amended complaint in a patent lawsuit that had previously been dismissed. The smartphone angle: the amended complaint includes new allegations of infringement regarding the Android operating system.

Interval Licensing’s move follows an August lawsuit against various online retailers asserting patented technology for automatically displaying content. With yesterday’s filing Interval Licensing added a new dimension, taking specific aim at Google – developer of Android – and in the process, highlighting an important distinction between mobile device manufacturers and software companies in what has been dubbed the “smartphone patent wars.”  This distinction is reflected not only in the kinds of patents being asserted and the inventions they cover, but also in who is suing who. As we see from the involvement of companies like Interval Licensing, this distinction is becoming blurred – meaning that the smartphone patent wars may be far from waning.

Non-practicing entities (NPEs) like Interval Licensing are not at all new to patent litigation. But their presence adds an interesting element to the smartphone patent wars, since they have no incentive to focus only one of the two other types of entities when asserting their patents. Traditionally in the mobile device world, a mobile device manufacturer and a software company would be customers of each other, entering into exclusive relationships to run mobile devices with specific operating systems  – and meaning that a particular device manufacturer would have an incentive to sue a particular software company only if the relationship between them failed in some way. NPEs throw that dynamic into substantial disarray because either type of entity can be a target – and in the case of Interval Licensing’s new lawsuit against Google, the patents asserted may have application to both.

Interval Licensing’s amended complaint asserts two new patents: US Patent No. 6,034,652 and US Patent No. 6,788,314. Both of these patents cover inventions regarding displaying content on a device’s display – systems and methods that present information to a person in a manner that engages the peripheral attention of the person by making use of unused capacity on the device, during inactive periods when a user is not engaged in an intensive interaction with the device, or during active periods but in an unobtrusive manner that does not distract from the primary device interaction. What’s interesting is that these patents are equally applicable to either the operating system or the device using it  – so that that the claims of each patent show could just as well be asserted against mobile device manufacturers using Android, in addition to just the maker of Android itself.

What does this mean? Most likely, it means that the 2010 smartphone patent litigation filings are far from over, and will almost certainly continue at least through 2011 and probably further. Especially if patents like the ones asserted this week against Google are successful at generating revenue for NPEs like Interval Licensing. There’s no reason to think these patents won’t later be asserted against mobile device manufacturers who have chosen to use the Android operating system, or even against other operating systems that also infringe these patents.

And it may not stop there. The recent introduction of “tablet” computers, which are essentially larger versions of smartphones and running on similar operating systems, may well be the focus of a new round of patent litigation. Patents such as those asserted by Interval Licensing could easily be applied to those types of devices as well – especially as they become increasingly popular, with more and more manufacturers pushing to bring their products to market.