Patent wars: stop the madness
If you live here in the states, you might be a little bummed. You see, daytime soap operas have been all but cancelled here. They’ve been replaced by talk shows and cooking shows hosted by quasi-celebrities. Boy, if you don’t live here, I must be making you jealous as all get out, huh? Sorry about that.
Fortunately, our drama fixes can still be satisfied in the mobile technology arena. Specifically, Apple and Samsung’s court battle is nearing its conclusion with a special Black Friday deal at just a hair under one billion dollars.
We briefly talked about this on the Pocketnow weekly podcast last week so if some of this sounds familiar, that’s why and thank you for listening. If some of this sounds brilliant, well then you, my friend, have exceptional taste.
I did give out a disclaimer on the podcast and I’ll reiterate here – I’m probably one of the least qualified individuals to discuss the patent system, it’s flaws, etc. I am not a legal expert, nor do I play one on TV. But I do have a pretty healthy dose of common sense and what I’m seeing in the patent system does not tickle those common senses with good vibrations. Indeed, it’s quite the opposite. Allow me to explain.
The patent system is a very useful and necessary tool. If one has an original idea, one should get credit (money) for it if someone else decides to use that idea. The patent system is what prevents large companies with infinite resources from taking ideas from the “common folk”, developing them, and bringing them to market faster than the common folk who created it. Similarly, when I was playing in my band a whole life ago, if Metallica had come to one of our shows and copied one of our songs note for note, we could have prevented them from claiming credit and sued the living bejesus out of them. Of course we probably wouldn’t have because DUDEMETALLICACAMETOONEOFOURSHOWSOMGOMG!
Patents are meant to be used as defense. They are a shield from wrong-doing.
But, as the saying goes, sometimes the best defense is a good offense. That seems to be the trend these days as patent portfolios are being locked and loaded against other patent portfolios in epic court battles. As is often the case, the only winners in Apple v. Samsung will be the lawyers of Apple and the lawyers of Samsung. But where have things gone so drastically wrong?
First of all, if you want to know about patents, and what they do and what they mean and how they’re used, click on over to this well-written piece by our own Anton D. Nagy. Had I written the headline, it would have been “Everything you ever wanted to know about patents but were afraid to ask”. It’s good stuff. Read it. Now. Seriously. I’ll wait.
OK, now that you’re back, let’s talk about a few things. Why does the patent system seem…I don’t know…stupid? The first problem is that it allows broad sweeping strokes in their patents. There are patents out there for “smartphone” and “wireless email” and “home button.” These patents are the innovations of old, back when concepts like “smartphone” and “wireless email” were outrageous and revolutionary. These things were going to change the world and then they did change the world.
The problem is that these revolutions are so wide spread and ubiquitous nowadays that those patents have pretty much lost their meaning. Dozens of OEMs now have “smartphones” which receive “wireless email”. Millions upon millions of people use them. At this point, who cares who originally filed some paperwork with a federal office 30 years ago? It has reached the point of saturation where it should now be in the public domain, no patent required, do not pass Go, do not collect $200.
Also, patents should be required to be extremely specific. Some of the patents in the Samsung vs. Apple lawsuit allege that Samsung’s products look and act like Apple’s. Please note: technically, this isn’t a patent but a “trademarked design” but it’s all part of the same conversation. If that’s the case, the trademark/patent/whatever should be required to be extremely specific. If Apple wants to trademark their phones, then every specification of the design should be detailed down to the millimeter. Then and only then would that design be the exclusive property of whichever OEM chooses to trademark it, within a reasonable margin of say +/- 10%.
What I mean here is let’s say Apple wants to trademark their design of the iPhone 5. Actually, that’s not speculation; they certainly have already. That design is theirs with tolerances either way. So if the rounded corners on the device have a radius of, say, 5 mm, then other phones’ rounded corners would not be able to fall within 4.5mm – 5.5mm lest they incur Apple’s lawyers’ wrath. But anything outside that tolerance is fair game. And it’s not just the corners. Apple should not be allowed to patent “5mm rounded corners.” They would, however, be allowed to patent a “device with a X” screen, and a chassis with the dimensions of X” by X” and a thickness of X with a home button AND 5mm rounded corners.” That is a specific patent right there and any device copying all of that would definitely be on the hook for trying to steal Apple’s design. I will get on that horse and ride it any day. You would officially have my vote.
But as it stands, patents are just too broad and OEMs are being allowed to patent the most vague concepts in very far-reaching ways. In a conversation earlier with Anton, I spoke of how I do support intellectual property. I was a musician a long time ago and I did copyright all of our songs. So if any band came along and copied a song of ours, note for note, then yes I would be inclined to sue the pants off of them. I did not file a copyright for “F-sharp” though even though I did play an F-sharp in several of my songs. I did not file that copyright because it would have been stupid and ridiculous. So is filing a patent for “home button”.
Maybe this is too simplistic. Maybe the patent system isn’t broken. There is a very good reason that issues like these are written off as the lawyers’ problem. But from the outside in a not-qualified-to-comment kind of way, the patent/copyright/trademark system seems like an abomination of its former self. Instead of being around to protect “the little guy” it seems like it’s just here so OEMs can lob bombs at each other and keep their lawyers occupied. It’s another one of those areas of government and the law that you just wish would boil down to common sense and not legal technicalities.
“Does it look like an iPhone? Does it work like an iPhone? Yes? Ok. Pay them and try not to be so stupid.”
But on the other hand, patents are what kept Palm and webOS afloat and marketable for so long. Patents are also a big part of what keeps Microsoft and Windows Phone in business. Maybe I shouldn’t complain so much. But at the end of the day, it’s just one of those things that is irksome and makes you want to grab someone by their ears and shake them until sense is restored.