Smartphones and tablets have empowered seniors to live independently and avoid isolation. They have changed the way we access critical services like telemedicine, education, or job opportunities. Yet while most of us have long acknowledged the critical utility of connected devices, one government agency still hasn’t gotten the memo.
On paper, the International Trade Commission (ITC) has the power to protect companies from the importation of products that infringe patented technology and affect an American domestic industry. In practice, however, the Commission has become a breeding ground for litigious bad actors called non-practicing entities or, less formally, “patent trolls.” Patent trolls are companies that produce no products or services but simply acquire patents to use as leverage against legitimate businesses. They start litigation that threatens a sweeping import ban on key products to force producers to hand over hard earned revenue.
Some of the trolls’ favorite targets are companies that produce smartphones, tablets, and other mobile devices, in large part because those products are highly complex technically and as a result implicate thousands of patents.
The goal of the trolls is simple: get rich quick by misusing the ITC process to coerce big pay-outs from the companies it hits. This tactic works because the ITC is ignoring the guardrails Congress included in the statute regarding protection of the public interest. If the ITC really examined the public interest in these cases, it is hard to see how a troll could move forward with its claims. A troll can easily go to district court to get damages or other relief proportionate to the situation, if there really is an IP violation. Given this, the public interest should dictate a firm no to these cases at the ITC. The massive product bans trolls are asking for threaten consumer access to key devices and promise devastating impacts on competition in the US market.
Yet the ITC unfortunately has been supporting troll cases asking for these exclusion orders even when they obviously fly in the face of the broad public interest. This year alone, the Commission instituted 11 cases against mobile devices targeting Apple, Samsung, Motorola, Google, and OnePlus.
The most recent cases that bear monitoring involve a patent troll named Daedalus Prime. This troll is alleging that semiconductor manufacturers are in violation of eight different semiconductor-related patents. If Daedalus Prime is successful in obtaining an exclusion order from the Commission, devices containing this key component—including many smartphones and tablets —would be banned from the U.S. market.
That outcome should be enough to worry any American, but Daedalus Prime claims that it’s no big deal. In its filings before the Commission, Daedalus Prime has argued these technologies serve no useful purpose for public health, safety, or welfare and are, in its words, only “for entertainment and convenience.” That absurd statement might actually be humorous if the consequences of a judgment in favor of Daedalus would not be disastrous for seniors and all other mobile-device users.
Recent research from the National Institute of Health has shown how critical this technology is for America’s seniors. The NIH study noted that tablets with larger screens in particular were shown to be particularly appealing to enhancing senior living and senior’s adoption of technology and concluded that “most participants quickly acknowledged that a tablet could serve as an outlet for sustaining a quality life and remaining connected with other people.”
The COVID-19 pandemic exposed the challenges of digital adoption gaps across the country. Like many other communities, seniors relied on smartphones and tablets to stay connected with loved ones. Despite traditional challenges with digital literacy, seniors have joined their peers by using these tools to pay bills, buy groceries online, and participate in the digital economy.
The ITC should not be making it harder and more expensive to access devices; they should be supporting ways to put them in every senior’s hands. But key policymakers at the commission are listening only to the demands of patent trolls and stand ready to block these products from our market.
If the ITC finds in Daedalus Prime’s favor, it will be thumbing its nose at our seniors. Accepting the idea that smartphones and tablets are simply items of convenience and luxury is insulting and dangerous.
To rein in abuses of the ITC process like this one, Congress needs to act. It can start with oversight hearings focused on the ITC that ask probing questions about why marginal IP claims are lionized and the public interest ignored in ITC proceedings. It also should take up and pass legislative reforms that modernize the ITC.
Our seniors deserve special attention and support. Patent trolls do not.