Smartphone makers are losing their marbles. Manufacturers seem hellbent on mutually assured destruction by trying to get each others' products banned from major markets such as the US or win big cash payouts in the hope of delivering a flesh wound to a competitor. But peace may soon break out because of the risks of nobody being able to play the game of who has the best smartphone.

Google subsidiary Motorola Mobility recently joined the throng of phone makers demanding the International Trade Commission (ITC) impose a ban. Motorola Mobility wants the courts to stop all of Apple's mobile products from being imported into the US. The call for a ban is, naturally, overplayed - it's a bargaining chip in getting licence money that will push up the price or push down the profits at a prime competitor. Apple's hardly the victim here, having gone after other manufacturers with similar tactics and won a $1bn settlement in the past week alone.

Apple's victory over Samsung in the US and a more even-handed outcome in South Korea have shown how relatively small aspects of a design can control access to a much larger market and that's where the problem with patents lies.

Patents were devised to provide manufacturers with a limited monopoly as a reward for disclosing their technology to a wider public. This was, and remains, A Good Thing. But the original patents had at their core the idea that you would protect much of the concept for a product in just one or two patents. In today's world of electronics, a single patent covers a tiny aspect of any practical design. But this is enough to potentially lock out a competitor with other good ideas if that competitor does not have enough patents in its portfolio to provide counterclaims.

So, manufacturers have busily accumulated patent portfolios designed to do little but enforce a lockout of smaller competitors and provide protection against their bigger foes. So big is the potential penalty for losing on a given patent - the removal of a market for an otherwise clean product - that engineering managers now routinely tell their staff not to read patents. In US courts, 'wilful' infringement is far worse than accidental. If you haven't read any patents, no-one can pin wilful infringement on you. But that clearly defeats the purpose of patents in the first place - unless they contain utterly obvious stuff that anyone "skilled in the art" should know, which should make said patents invalid.

The result is potentially a group of mobile phones that cost more in IP licences than actual components if all these patents are enforced using ideas that may not be entirely obvious but not the result of skilful invention in the way a manufacturing process might be. Wind back the clock to the 1970s and look at what happened to the big chipmakers. They all had patents for key bits of semiconductor manufacturing and sued each other mercilessly. Until, one day, they realised that everyone had their guns trained on each other. They called a truce and signed open-ended patent cross-licensing deals. The war was more or less - at least for a while. The alternative is even more chaos and, ultimately, a logjam in innovation.