Saturday, February 25, 2012

A great bonanza for the lawyers?

In a post The Patent War to End All Patent Wars, John C. Dvorak reviews some of the issues in the upcoming patent fight/litigation between Apple and Microsoft on one side and Google, Motorola, and Samsung on the other. In the future, Nokia will likely come in with Microsoft while IBM will likely side with Google.

Within the Dvorak post, one has the text:

If they [patents] indeed protect inventions, then why do they have to be licensed at all? Seriously, if I invent something, the patent system is supposed to give me a 26-year monopoly on the invention, after which it is passed into the public domain for all to use.

Separately, Timothy B. Lee analyzes the "inventiveness" of Apple in a piece in Forbes titled >Apple (Mostly) Isn't to Blame for the Patent Mess , which includes the text:

The problem is that once you have the full context, it’s surprisingly difficult to draw a line between ideas Apple “invented” and already-existing ideas that Apple merely put to use in a new context. For example, NYU’s Jeff Han demonstrated a set of sophisticated multi-touch applications at a 2006 TED Talk. Apple’s genius was largely to recognize that these same multi-touch gestures could be usefully translated to the form-factor of a cell phone. So was Apple’s application of Han’s techniques to the cell phone context a new invention or just a relatively obvious translation of Han’s work to a new form factor?

Another example: Apple pioneered the “slide to unlock” paradigm. But it wasn’t actually the first company to use this gesture. A 2005 phone called the Neonode N1m employed a slide-to-unlock feature that was virtually identical. The only difference: the iPhone features a graphical “slider” that gives the user feedback as he slides his finger across the screen. The N1m didn’t provide any such feedback. Does adding a graphical indicator to the N1m’s slide-to-unlock gesture make it a new invention or a straightforward enhancement to existing technology?

I have my personal opinions on these questions, but the broader point is that it’s hard to see how this kind of question could ever be settled in an objective fashion. From the perspective of patent law, the question is whether the improvements in question (putting multitouch on a phone, adding a graphical indicator to slide-to-unlock) would have been “obvious” to someone of ordinary skill in the art. But thisis just re-stating the same subjective question in slightly different terms. If you polled a bunch of engineers or patent lawyers, you’d likely get widely varying opinions.

In the end, Lee blames the patent office:

It’s not anti-Apple to say that patent law puts Google in an impossible situation. Any effective system of property rights needs clear boundaries so market participants know which resources they’re allowed to use and which ones require the permission of third parties. The patent system is a miserable failure in this respect.

Apple has taken full advantage of the opportunities our broken patent system has given them to hamstring its biggest competitor. But while Apple deserves a small share of the blame, most of the blame should be directed at the institutions—Congress, the courts, and the patent office—that broke the patent system in the first place.


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