Patent-licensing review could hit Apple-Samsung

An Australian Productivity Commission review into compulsory licensing could potentially impact ongoing patent disputes between tech giants like Apple and Samsung.

On Friday afternoon, Assistant Treasurer David Bradbury announced that the Productivity Commission would review the compulsory licensing provisions in the Patents Act 1990. These provisions are designed to prevent anti-competitive behaviour that might result from exclusive rights to a technology.

The commission has been tasked with reviewing whether these provisions can be invoked effectively, and how frequently compulsive licensing is invoked in Australia in comparison to the rest of the world. It has been told, in the terms of reference, to have specific regard to "standard essential patents in telecommunication technologies, particularly where multiple patentees are involved".

Standards-essential patents are key to Samsung's patent battle against Apple, as Samsung holds a number of standards-essential 3G technology patents that it claims Apple has not licensed from Samsung in the development of the iPhone and the iPad.

The hearings for the Apple-Samsung case are set down before Justice Annabelle Bennett, starting at the end of this month and running until October, and the Productivity Commission is not due to report until April 2013. The review of the Patent Act shouldn't therefore impact the case in its current stage, but it may get caught up in the appeals process.

The review comes as a report by the Boston University School of Law last week claimed that "patent trolls" — companies that seek royalties or payments for patents that they own for certain technologies, but which they don't use themselves — cost the US economy US$29 billion in 2011.

The report made news across a number of technology websites last week, but patent lawyer for Watermark Mark Summerfield questioned the reliability of the report in a blog post on Friday, noting that the study was based on data provided by RPX Corporation. The company has a vested interest in the research, he said, because its role is to acquire patents from patent trolls on behalf of corporations like Nokia, eBay, Google and IBM for a fee of anywhere between US$65,000 and US$6.9 million.

He noted that the study only surveyed 82 companies, of which only 46 responded to questions about patent trolls, meaning that the data is not representative of the entire US. He also noted that the study's definition of a patent troll would include individual inventors and universities, and would likely encompass the Commonwealth Scientific and Industrial Research Organisation (CSIRO) for its Wi-Fi patent.