Patent Wars: When IP protection becomes anti-competitive
So, who wins when companies like Apple and Samsung battle over intellectual property? No one. Here’s why.
Apple doesn’t win
Apple thinks they will win because they think this action will block a rival product based on the fact that they claim they invented it first. In fact, it’s not that they ‘invented’ it first, it’s because they patented it first. Whomever gets to the patent office gets exclusivity. That’s how patent law works. However, Apple won’t win because of the negative publicity backlash that it is now unfolding onto the Apple brand. The backlash against Apple is already beginning and it may end up becoming Apple’s downfall.
Seriously, are we to believe that there is any possibility of confusion between a Samsung device running Android and an Apple device running IOS? The operating systems aren’t even remotely similar. The sole and only reason to prevent another company from putting something on the market is to avoid brand or product confusion. I hardly think that anyone would confuse a Samsung Galaxy device clearly labeled with the Samsung brand with an Apple device clearly labeled with the Apple brand. Heck, the Galaxy devices don’t even resemble the iPhone now.
Clerk: Why are you returning this device today?
Consumer: Oh, I’m bringing this Samsung back because I thought it was an iPhone.
I don’t think so. This is not a likely scenario at all. I can’t imagine any consumer could walk into a Samsung retailer and confuse a Galaxy S with an iPhone. So, why is Apple so adamant that this device is a threat to their survival? In fact, if anything is a threat to Apple’s survival, it’s Apple. Playing these legal games is the best way to actually make consumers become aware and interested in the exact devices they hope to prevent being placed onto store shelves. If Apple had left well enough alone, these devices would have fallen into obscurity on their own and the iPhone would still reign supreme. Calling undue attention to another device, in just the way Apple is doing, is just ripe to backfire on Apple. And, backfire it appears to be doing. Way to go Apple.
Samsung doesn’t win
I’m not going to cheer for Samsung here. Are they a victim? Not really. They’re a large corporation that’s out to make a buck on a design that’s far too similar to one that someone else created. I won’t say that Apple is in the right here, but Samsung is also not in the right by doing what they did. I personally don’t like Samsung devices. They’re too unreliable and don’t last. I’ve bought many Samsung devices and they just don’t hold up long enough. The quality is too low for the price they charge. Making quality products is a whole separate issue from producing a product that cashes in on a look from a competitor. Samsung, at least have the decency to hire designers that produce original looking devices designs. It’s really not that hard. There are plenty of good industrial designers who could produce a high quality unique case design that could easily rival Apple’s designs without looking remotely like an Apple product. More than that, though, why not make products that actually last?
Consumers don’t win
By getting injunctions to prevent products from hitting the store shelves, this is tantamount to legalized anti-competitive practices. Legalized because the courts agree with and, further, set up injunctions to prevent these devices from hitting the shelves or be sold within the US. This hurts the consumer because now there is less choice. Apple’s thinking is that with less choice comes more likelihood that the consumer will choose Apple instead. Unfortunately, Apple didn’t take into account the PR nightmare that’s unfolding here. Apple, don’t underestimate the consumer’s intelligence. Consumers understand that Apple is taking legalized anti-competitive measures to try to win the consumer choice war. It is, however, the consumer’s choice as to what phone to buy and use. It is not Apple’s choice. Companies, when they get to a certain size and arrogance, tend to forget or choose to ignore consumer choice. This is capitalism and consumers have freedom of choice.
Consumers will vote with their wallets in the end and that will likely be to Apple’s detriment in the long haul. Instead, Apple needs to drop this lawsuit now and let these devices onto the market from Samsung. Let the devices hold their own or fail on their own merits. The consumers will decide what they want to use. Since there is not a real possibility that consumers could mistake a Galaxy S Android phone for an IOS based iPhone, there is really no damage done here. It’s only perceived damage.
The real damage being done today, that Apple is doing to itself, is the public relations debacle they face with consumer sentiment. Consumer sentiment is real and it is tangible and it can make or break a company. The longer these IP issues drag on and the more devices they try to block, the more people will pull away from Apple and leave the company, once again, high and dry.
Apple’s future uncertain
Apple needs to stop, look and listen. They need to make better, faster and more useful devices instead of pulling out the legal team to fight a losing battle. Keep the innovation going. Forget the old wars and move on. Heck, the whole thing started because Samsung made a phone that resembled the iPhone 3 case style. They don’t even sell the iPhone 3 case style anymore. The Galaxy Tab looks nothing remotely like an iPad either. So, the whole ‘it looks like an IOS device’ issue is now moot. It’s just being dragged on because of Job’s complete hated of Android.
Unfortunately for Apple, Android is here to stay and it’s not going away anytime soon. Locking out Samsung does not in any way lock out LG or HTC or any other device that runs Android. Instead, Apple needs to focus on innovation with IOS and its new devices and drop this PR nightmare that’s now unfolding in the consumer space. If Apple wants to drive a wedge between the consumer and the company, Apple’s current legal strategy is perfect. If Apple wants to produce high quality easy-t0-use devices, that goal has nothing to do with blocking the sale of similar devices via legal channels.
Apple is now officially full of sour grapes.
Patent Trolls or why software patents should be abolished!
The patent system was originally designed to provide exclusive rights for invented ideas to inventors. But, there used to be a catch, the idea must lead to a real world tangible device. The patent system was also conceived long before computers existed. So, at the time when the patent system was conceived, it was designed as a way for inventors to retain exclusive control over their ideas for tangible devices without other people stealing or profiting from those ideas.
The patent system is enforced by the legal system. It is sanctioned by governments (specifically in the US, by the US Patent Office – USPTO and the legislative system) to protect said individuals’ patents from use by others who serve to profit from those previously ‘patented’ ideas. So, enforcing a patent involves suing an alleged infringer and then having a court of law rule whether the alleged infringer has, in fact, infringed. It is, then, the burden of proof of the patent holder to prove infringement. And, of course, it ties up the legal system to resolve this dispute.
Tangible vs Intangible Devices
The patent system was conceived at a time when the ultimate outcome of a patent idea was to produce a tangible physical good. That is, something that ultimately exists in the real world like a pen, a toaster, a drill, a telephone or a light bulb. The patented idea itself is not tangible, but the idea described within the patent should ultimately produce a tangible real world item if actually built. This is why ideas that lead to intangible things were never allowed to be patented and are only allowed to be copyrighted or trademarked.
Fast forward to when the first computers came into existence (30s-60s). Then later, the 70s when the US Patent Office began granting software patents en masse (although, the first software patent was apparently granted in 1966). Software, unfortunately, is not a tangible thing and, for the most part, is simply a set of ideas expressed through a ‘programming language’ with finite constructs. Modern programming languages, specifically, are designed to have limited constructs to produce a structured code. That is, an application that follows a specific set of pre-built rules to basically take data in and present data out (in specific unique ways). Ultimately, that’s what a program does, take data in, process it and spit data out in a new way.
Software Design Limits
Because modern programming languages have limited constructs from which to build an application and which are further constrained by such limits as application programming interface (API) frameworks, operating system function calls, hardware limitations and other such constraints, writing an application becomes an exercise in compromise. That is, you must compromise programming flexibility for the ease and speed of using someone else’s API framework. Of course, you can write anything you want from scratch if you really want, but most people choose to use pre-existing frameworks to speed the development process. Using external frameworks also reduce time to completion of a project. At the same time, including third party API systems is not without its share of coding and legal issues. Programmatically speaking, using a third party API opens up your code to security problems and puts implicit trust into that API that it’s ‘doing the right thing’. Clearly, the functionality derived from the external framework may outweigh the security dangers present within the framework. From a legal perspective, you also don’t know what legal traps your application may fall into as a result of using someone else’s API framework. If they used code within the framework that is legally questionable, that will also bring your application into question because you used that framework inside your app (unless, of course, it’s using a SOAP/REST internet framework).
With all that said, embedding frameworks in your app severely constricts your ability to control what your program is doing. Worse, though, if you are using a high level programming language like C, C++, Objective C, C# or any other high level language, you are limited by that programming language’s built-in construct. So, even if you choose to code everything from scratch, it’s very likely you could write code substantially similar to something that someone else has already written. Because high level languages have limited constructs, there are only so many ways to build an application that, for example, extracts data from a database. So, you have to follow the same conventions as everyone else to accomplish this same task.
Software Patents are bad
Because of these limited high level language constructs, there is a high probability that someone writing an application will write code that has already been written hundreds of times before. And note, that’s not an accident. That happens because do()while, for() and while() loops as well as if conditionals area always used in the same way. Worse, you can’t deviate from these language constructs because they are always the same in pretty much any language. If these constructs didn’t exist, you couldn’t easily make decisions within your code (ie, if X is greater than 3, do this, else do that).
Why are software patents bad? Simply, because languages are written with such limited programming concepts, the probability to reinvent something that has already been invented is far too high. Unlike devising a real world idea where the probability someone could come up with that same exact idea is likely near zero, writing software using language constructs the probability is far higher than 70% that someone could design the same (or substantially similar) code, idea or construct. And. that high probability is strictly because of the limits and constructs imposed by the high level language.
Yet, the USPTO has decided to allow and grant software patents knowing the probabilities of creating substantially similar ideas within the software world is that high. Yes, probabilities should play a part in whether or not to grant patents.
Probabilities
Probability in idea creation is (and should always be considered) how likely someone is to create something substantially similar to someone else. Probability should always be relevant in granting patents. Patents need to be unique and individual. That is, a patent should be granted based on something that multiple people could not devise, guess, build or otherwise conceive accidentally. Because real world tangible items are constrained only by the elements here on Earth, this effectively makes inventions using Earth elements pretty much infinite (at least for all intents and purposes). Because software code uses a much smaller number of constructs that limit and constrain programming efforts, that smaller set increases the chances and the probabilities that someone can create something similar. In fact, it increases probabilities by orders of magnitudes. I’m sure an expert on statistics and probabilities could even come up with real world probability numbers between element based inventions and software code based inventions. Suffice it to say, even without this analysis, it’s quite clear that it’s far too easy for someone to devise something substantially similar in software without even really trying.
Software patents are bad, revisited
Basically, it’s far too easy for someone to devise something someone else has already conceived using software. On top of this, the USPTO has seen fit to grant software patents that are way too obvious anyway. That is, they’ve granted patents to software ideas that are similarly as common place as cotton, strawberries, a nail and yarn. Worse, because of these completely obvious patents, patent trolls (people who do nothing but patent without the intent of producing anything) game the system and produce completely obvious patents. This action has created a land mine situation for the software industry. This is especially bad because it’s virtually impossible to search for existing patents before writing software.
So, as a software developer, you never know when you might step on one of these land mines and get a ‘cease and desist’ notification from a patent troll. That is, someone who has patented some tiny little thing that’s completely obvious, yet your application takes advantage of that thing somewhere because you just happened upon one of the easy to build constructs in a language. Yet, patents should only be granted based on an idea that someone cannot easily create by sheer accident. Yet, here we are.
Ideas now patented
Worse, software is not and has never been tangible. That is, software doesn’t and cannot exist in the real world. Yes, software exists on real world devices, but that software itself is just a series of bits in a storage device. It is not real and will never be real or ever see the light of day. That is, software is just an idea. An idea with a structured format. It is not real and will never have a real tangible physical shape, like a toaster. We will never be able to have tactile interaction with software. Hardware, yes, is tactile. Software, no. The software’s running code itself cannot stimulate any of our five senses: not sight, hearing, touch, smell and taste.. Someone might argue, well software does produce visual and audible interaction. Yes, the output of the software produces these interactions. That is, the software processes the input data and produces output data. The input and output data has sight and sound interaction. You still aren’t seeing or hearing the software code doing the processing. That’s under the hood and cannot be experienced by our five senses. For this reason, software is strictly an idea, a construct. It is not a tangible good.
Patents are a form of personal law
That is, the owner of the patent now has a legal ‘law’ that they need to personally enforce. That is, that patent number gives them the right to take anyone to court to enforce their ‘law’ err.. patent. No entity in government should be allowed to grant personal law. Especially not for intangible things. I can understand granting patents on tangible items (a specialty hair clip, a curling iron, a new type of pen, etc). That makes sense and it’s easy to see infringement as you can see and touch the fake. It takes effort, time and money to produce such a tangible item. Software patents require nothing. Just an application to the USPTO, a payment and then wait for it to be granted. After the patent has been granted, take people to court, win and wait for royalties. This is wrong.
All software patents should be immediately abolished and invalidated
Why?
- Software patents only serve corporations in money making ventures. Yet, software patents really serve to bog down the legal system with unnecessary actions.
- Software patents stifle innovation due to ‘land mines’. Many would-be developers steer clear of writing any code for fear of the legal traps.
- Software patents are granted based on probabilities far too high that someone will produce something similar based on limited high level language constructs
- Because software language constructs are, by comparison, much smaller in number when compared to Earth elements (when inventing real world ideas), probabilities say it’s too easy to recreate something substantially similar to someone else in software.
- Software is intangible and cannot expose itself as anything tangible (which goes against the original idea of patents in the first place)
- Software patents will reach critical mass. Eventually, the only people left writing code will be large corporations who can afford to defend against legal traps.
- Software patents are now being granted without regards to obviousness.
As a result, all software patents, past and present, should be immediately invalidated. If we continue this path of software patents, a critical mass will eventually exist such that writing software will become such a legal landmine that developers will simply stop developing. I believe we’ve already seen the beginnings of this. Eventually, the only people left who can afford to develop software will be large corporations with deep pockets. Effectively, software patents will stifle innovation to the point that small developers will no longer be able to legally defend against the Patent Trolls and large corporations seeking to make money off ‘licensing’. The patent system needs to go back to a time when the only patents granted were patents describing tangible physical goods. Patents that do not describe tangible physical goods should be considered ideas and dumped under copyright law only.
Random Thoughts - Randocity! 
leave a comment