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As smartphones proliferate, so does patent law

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Intellectual property (IP) law was previously thought of an esoteric section of the law that no one paid attention to. But with the explosion of smartphones, it has become more relevant than ever, with law firms specializing in IP and patent law cropping up in Westchester.

“There was a time when patents were thought of for a new machine or a new transmission in an automobile,” said Jess Collen, attorney and partner at Ossining-based Collen IP Intellectual Property Law P.C. “The effect wasn’t so well known. Like everything in the e-sphere, patents have a much more immediate impact on people’s lives.”

IP law involves giving the creator of product exclusive rights to their creation, including copyrights and patents. Collen, who has been active in IP law practice for 25 years, said that smartphones have become a big battleground for patent fights.

Patent wars have been brewing, with ongoing litigation between Apple Inc. and Samsung Electronics Co. Ltd. over Samsung’s Android smartphone. Nortel Networks recently sold 6,000 patents for $4.5 billion to Apple. Google Inc. purchased Motorola Mobility for $12.5 billion, paying $5.5 billion for Motorola’s patents. Eastman Kodak Co. is also looking to sell its patents for billions, while Yahoo! Inc. is considering litigation against Facebook over 10 to 20 patents. And as it saw its market share declining, Nokia Corp. sued Apple to protect its patents.

“Traditionally patents were an arcane field,” Collen said. “But now every business has IP implications. Every business has a website and uses software. There are innumerable IP consequences. In years past, people didn’t understand it.”

Further complicating IP law is the fact that each country has different copyright and patent laws, so a product patented in the U.S. isn’t necessarily patented in China.

“It’s an area that is very problematic,” Collen said. “There are international conventions and treaties that try to harmonize the laws, but they tend to be territorial. Having protection in one place doesn’t mean you have protection in another place. These issues are very thorny, and are a real problem for companies.”

Plus, obtaining a patent can be a long, arduous and expensive proposition that most companies around the world can’t afford to do.

“There are 180 countries,” Collen said. “It’s really hard, almost impossible, to patent a product everywhere. Even big companies make this choice because it’s not cost effective.”

Collen advises creators to file patents as soon as possible, because any delay could cause a patent to be taken, leaving the creator with little to no legal recourse.

“Patents must be protected and must be protected promptly,” Collen said. “If you don’t protect yourself immediately, you may never be able to get it back.”

Peter Sloane, of White Plains law firm Leason Ellis L.L.P., has seen firsthand the explosion in patent and IP law.

Sloan said that mobile apps are among the most infringed items and that it’s almost like the Wild West in terms of enforcement.

“Trademark owners are still grappling with these issues,” Sloane said. “There’s a question of jurisdiction. Different providers are developing their own policies and guidelines.”

At Apple, Sloane said the company tells complainants to deal with the infringers themselves, and generally stays out of the fray, which Sloane said is not always effective.

“Trademark owners aren’t overly excited about spending more resources on trademark protection,” Sloane said. “It becomes a negotiation, and some are more reasonable than others. No one is looking to litigate matters. There’s usually a way to come to an agreement.”

Sloane said that IP law is a field that has been expanding and evolving, particularly as the economy shifts from manufacturing to service based.

“You find it easier for startups to get off the ground,” Sloane said. “Many of them have valuable IP property to protect. Consumers are more brand savvy than they ever were before; the importance of trademarks is ever more important.”

Leason Ellis started in 2008 with four attorneys and now has 23 attorneys, all practicing patent, trademark and copyright law. It’s the largest IP firm in Westchester and the 7th largest in the country.

“It’s reflective of the growth of IP, especially in Westchester,” Sloane said. “Westchester is home to a lot of talented IP attorneys. People want to bypass the city and work out of where they live.”

Alex Poltorak, who runs Suffern-based General Patent Corp., said patent litigation has become more frequent and important over the course of the past century.

“It’s the new currency,” Poltorak said. “There’s this dependency on technology and technological innovation to distinguish competitive features and new products. It raises the importance of patents as primary marketing tactics.”

Poltorak would like to see uniform worldwide copyright laws and create a system similar to Europe. The European Union set up a copyright law that trademarks and patents items throughout the continent, rather than one country.

“It significantly simplifies dealing with patent issues,” Poltorak said. “There’s global trade, it’s silly to have different countries with different patent laws. It’s a national monopoly and gives you the right to exclude others. It makes little sense.”

Like his contemporaries, Poltorak said he has seen IP and patent law become more appreciated in recent years.

“It was seen as an arcane area of the law,” Poltorak said. “We wore pocket protectors and stayed in board rooms, but it’s a different game now.”

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