Today's Opinions, Tomorrow's Reality 

Patently Unfair

By David G. Young

Washington, DC, February 14, 2012 --  

Apple's war against Android proves how degenerate America's patent system has become.

Apple's attempt to block sales of a new Samsung mobile phone is the latest skirmish in a punishing patent war between rival manufacturers. The latest episode in this war erupted last week, when Apple filed suit in a California federal court for an injunction against sale of the Samsung Galaxy Nexus, the most advanced phone to date running Google Android software.1

The legal dispute is based on alleged patent violations of four minor features found in the latest version of the Android's operating system. But the real problem with the lawsuit goes to the heart of the patent system, which has degenerated from a driver of innovation to an anticompetitive weapon.

It didn't used to be this way. A century ago, patent law served to promote competition by protecting inventors from wholesale copying of their devices.

In the industrial age, this protection was critical because of the high costs of setting up manufacturing a physical device. If established rivals could simply copy inventors' products, upstarts could never hope to recoup their capital investments. Consumers benefited from this system, because they got access to physical inventions that otherwise could not exist.

Yet this system has a dark side. Since the dawn of man, different people have been independently coming up with the same inventions. Writing was invented in both Mesopotamia and China. Both the Wright Brothers and Samuel Langley built working flying machines. In software, different people independently come up with the same ideas every single day.

The theory of patent law accepts that people's right to the use if their inventions may be restricted, even if they came up with the idea first or independently (or if they would have done so anyway), if another applicant was the first to submit a patent application. This aspect of patent law is terribly unfair -- but it exists because it is the only way the system can work. Had patent law existed five thousand years ago, the Sumerians could have filed an injunction to stop the Chinese from writing.

Accepting such injustice in return for a practical benefit may have made sense a century ago. But this practical benefit no longer remains in an era where inventions are based on snippets of computer code rather than metal gears, steam and diesel. In software, there are virtually no capital production costs.

A teenager working in his free time can mass-produce an invention to make an entire industry obsolete, as Sean Fanning's Napster proved to the music labels over a decade ago. In such an environment, patent protection serves not to protect upstart inventors, but to empower inventors' established rivals with enormous patent portfolios.

Today, patent law impedes genuine competition between high tech rivals and has become a morally repugnant tool of powerful interests. Large software companies patent portfolios have little to do with real inventions -- they are but arsenals for legal battle against their rivals. While working as an engineer at America's software giant Symantec, I was instructed to repeatedly submit patent templates to the company's lawyers not based on my inventive ideas, but based upon arcane uses of code in order to beef up the corporate portfolio.

But companies don't just build patent arsenals -- they buy them. This is precisely the purpose of Google's acquisition of Motorola Mobility. Some companies exist for no other purpose. Known as "patent trolls", these shell companies exist only to buy or license obscure patents, and then sue legitimate companies for patent violations, real or imagined, to extort settlements.

But putting aside the abuse of patent law -- does Apple have a moral argument about Android copying its ideas? Steve Jobs certainly thought so, saying in his biography, "I'm going to destroy Android, because it's a stolen product. I'm willing to go thermonuclear war on this."2

While Steve Jobs was certainly a tech visionary, his bitter, megalomaniacal view of Android smacks of hypocrisy given Apple's own history of copying others' ideas. The design of the graphical user interface for the first Macintosh was heavily borrowed from Xerox. Years before the iPod, companies like Creative, Archos and Diamond Multimedia were making MP3 players with very similar designs. And even the ubiquitous iPhone copied many innovations from the Palm Pilot and was preceded for over three years by Compaq's clunky, yet workable, iPaq smartphone.

Yes, there is no question that Android has copied and built on many ideas and innovations from Apple, just as Apple has copied and built on many ideas and innovations of others. This isn't stealing -- it's how software development works. If America is to remain a driving force behind high tech innovation, its degenerate patent system must be brought under control.

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1. Reuters, Apple Launches New Legal Attack on Samsung Phones , February 13, 2012

2. PC Magazine, Steve Jobs Bio Reveals Intense Battle With Google, October 21, 2011