Is the Threat of Apple's Patent Lawsuit Overrated?

On March 2, several media outlets (NYT, WSJ) reported on Apple's patent infringement lawsuit launched against cellphone manufacturer HTC.  Many of my students forwarded copies of the story to me, which is evidence of the wide publicity the case has received (in addition to the high intellect of my students!). HTC is a particularly interesting adversary for Apple, because its phones run Google's Android system.  Thus, many have viewed this case as a strike against Google.  Others note that Apple's 20 patents-in-suit are old and broad enough to cover a wide swath of smart phones, suggesting that the suit may be the first of many Apple files against its various competitors.

I think that some of the media commentary may be an over-reaction, as Apple does not have the freedom to sue its competitors that some believe.  The reason is that computer-related technologies have a very complicated patent environment that generally restrains unilateral patent litigation.  This industry is often dominated by dense, overlapping areas of patent rights (some might refer to pieces of the landscape as "thickets") owned by several companies.  There's a detailed explanation of this phenomenon in an article on biofuels I published in the Florida State University Law Review with my co-author, Leland Glenna. In computer-related industries, companies are often reluctant to sue competitors because they know that they will be hit with an avalanche of counterclaims for infringement of their competitor's patents.  The Apple-Nokia litigation -- wherein Nokia has asserted 10 patents against Apple, and Apple has counterclaimed for infringement of 13 patents against Nokia -- is a perfect example of what happens when someone pulls the trigger.  So rather than sue at every opportunity, Silicon Valley companies generally choose to accumulate an arsenal of patents as a defensive strategy.  It's a little like mutually-assured destruction (MAD) during the cold war.  This, by the way, is why Silicon Valley companies fear "patent trolls" so much: they have nothing to lose by suing.

In the context of Apple and HTC, it has been noted that HTC is more of a contract manufacturer and does not have the patent arsenal that Samsung, Palm, Motorola or Nokia might posses.   So it is a fairly safe lawsuit, and perhaps merely a mechanism for Apple to announce that it has rights in the area and would like to begin negotiations (or encourage competitors to move away from directly challenging the iPhone).  On the other hand, companies with patents in the field might find the threat somewhat limited.