You can’t touch this – What Apple’s $5.7bn haptic technology patent case means for innovators

It’s the sort of technology which we’ve become so used to we can forget it’s there, until something dramatic happens in connection with it. You may have seen reports in the media that Apple Inc. has been ordered by a jury to pay some $5.7 billion to Taction Technology, Inc. for infringing two Taction patents in the area of haptic feedback.

The jury’s verdict shows that they agreed that Apple had infringed the patent in question, and that Apple had not persuaded them that Taction’s patent was invalid; it even indicates the precise damages the jury believed Taction were owed ($5,721,961,750). Taction argued that their inventions had been infringed in multiple models of iPhone and Apple Watch, and it’s easy to see how that could add up to a large number of infringing acts.

But it wasn’t all bad news for Apple – the jury took the view that they didn’t willfully infringe the Taction patents. (In other words, the jury had not been persuaded that Apple should have known that they were going to infringe Taction’s patents and pressed on anyway.) Under US patent law, “willful infringement” can triple the damages due.

$5.7 billion in damages in a situation where a jury believes you didn’t deliberately act with disregard for a patent holder’s rights may seem harsh, but this is the nature of patent rights. Worldwide, the whole concept of a patent is that it gives you an enforceable monopoly over the invention described in your patent.

In highly competitive markets, it’s wholly possible that two separate companies will be working on the same problem, and that their teams working independently of each other may well arrive at the same solution – but if one team patents their idea first, the other team is on the back foot, and may not be able to make commercial use of their own research without a significant infringement risk, even if they had no idea of the other company’s IP (or very existence).

So, how do you steer clear of the competition? Here’s three top tips:

• Know your market. Various databases of patent applications exist out there – some of them, like espacenet, are free and cover a wide range of jurisdictions. You might tell yourself that “ignorance is bliss”, and it’s better not to know about patents that may cause you issues to avoid claims that you have been a “willful infringer”, but Apple are probably no happier about their $5 billion bill than they would have been about a $15 billion one. Keeping an eye on what’s out there can help you spot potential trouble.
• Get advice. If you aren’t experienced in patent law it may be tricky to figure out a patent’s true scope of protection. Our patent specialists can both help you with your searches and monitoring of competitors’ IP and dig into anything which has come up on your searches you want deeper insights on.
• Design around, cut a deal, press on, or attack. Let’s say you find a patent (or a pending application) which may cause you headaches. Perhaps you can come up with a suitable way to redesign your concept to avoid trouble – we can advise on whether a proposed “design around” is sufficient to avoid infringement. Perhaps you can arrange to licence the IP in question, giving you legal certainty and perhaps prompting fruitful ongoing collaboration with the owner; our IP and corporate and commercial teams can support you through such a process. Or perhaps you have grounds to think the patent or application is invalid; our teams can help you to assess whether those grounds would stand up if you were sued and to assess whether a more proactive approach of challenging the patent or application to clear your path is appropriate.

Being proactive about your freedom to operate can be expensive upfront, but it lets you act on your schedule. Speak to our Intellectual Property team today, before a proprietor decides it’s hammer time.