Regarding patents

Regarding patents

There's a lot of back and forth going on in the debate about patents -- and by conflation, trademarks and copyrights -- these days. Everyone has an opinion, pro or con, informed or emotional, engaged or dismissive. And that's good, because like it or not, the current patent debate matters.

It's easy to think that patents are something that should only concern the mega-companies and the lawyers, the rich and the litigious. But that's not the case at all. Today's abstract patent case is tomorrow's loss of a gadget or an app. Already Apple has a temporary injunction that prevents Samsung from resupplying Galaxy Tab 10.1's in most of Europe. If it's not overturned soon, a consumer walking into the store in Germany may not be able to buy the device they want to buy. Likewise, Lodsys' lawsuits against developers has caused some to consider removing their apps from the US market. That means a consumer going to the App Store might not be able to buy the software they want to buy.

Patents, and the ongoing lawsuits surrounding them, matter to consumers not just in the abstract sense that we should all take an active roll in shaping the societies in which we live, but in the real sense that that they directly relate to what we can and can't buy.

And we don't have to be experts, versed in every facet of patent law to understand that, or to be righteously indignant about the current state of patents, any more than we need to be a physicist to worry about nuclear proliferation or social scientist to worry about civil rights. Its impossible for everyone to understand everything about every issue. It's impossible for those charged with making and enforcing our laws to understand everything about every issue.

But we understand something. We see crazy patent after crazy patent granted years after the ideas have become public, ignoring prior art, ignoring obviousness, and we see the gadgets and apps we want distracted and derailed by crazy lawsuit after crazy lawsuit, and we -- the non-patent-law-educated-public -- understand that something is broken.

"Perception is reality" is a cliché for a reason -- public perception certainly can sway and shape reality, and the court of public opinion can sometimes be as influential as the court of law. Right now, whether you agree with the current patent system or not, there seems to be a general public perception, at least among technology enthusiasts, that the system isn't really serving the public interest. Ideas seem to be rushed out simply to be patented and bought, sold, and licensed as commodities. The USPTO seems to have almost abdicated its role in determining the validity of patents and simply grants almost all of them, preferring to let companies and individuals determine validity through costly, time consuming, and disruptive litigation. And some companies seem to be willfully infringing on patents just because they think they're beyond the law. To us, the uninvolved but ultimately affected technology enthusiasts, it absolutely seems broken.

Whether there's a way to fix it or not isn't the point. Whether companies should be amassing giant, nuclear stockpiles of patents to deter lawsuits, whether non-practicing entires (often trolls) should be allowed to sue independent developers, whether the USPTO should grant patents with so much prior art my grandmother would find them obviously flawed, whether one giant company should be able to misappropriate the work of another, whether you even care about patents isn't the point and isn't important. The discussion is the point. The discussion is important. The discussion matters.

The discussion matters to the companies that make our gadgets, to the developers that make our apps, and to us, the consumers, who ultimately get those gadgets and apps -- or not.

This is and issue that will shape and define the industry we work in or simply the technology we love, not in the abstract but in reality. And this discussion absolutely matters.

[Recommended reading: Nilay Patel, Marco Arment, Mark Cuban]

Have something to say about this story? Leave a comment! Need help with something else? Ask in our forums!

Rene Ritchie

EiC of iMore, EP of Mobile Nations, Apple analyst, co-host of Debug, Iterate, Vector, Review, and MacBreak Weekly podcasts. Cook, grappler, photon wrangler. Follow him on Twitter and Google+.

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Reader comments

Regarding patents


You may also wish to add Mark Cuban to your recommended reading on the topic.

  1. End all software patents. Don’t make them shorter, eliminate them.
  2. End all process patents. They serve absolutely no purpose. None.

There is quite a bit more nuance to the arguments at the site, but those are the two main thrusts.
Tim Berners-Lee patented any underlying processes of the WWW the way companies (including Apple) seek patents for concepts these days, web browsing would just have come into the public domain a couple of months ago (TBL having put laid the foundations in 1981)

Sort of -- the first US patent was granted to Samuel Hopkins for a specific means of making potash, for a significant improvement over then-current means.
His improvement to the process was novel, and neither quick to discover nor obvious to a typical educated member of the field. This process improvement would therefore be patentable discovery even under a strict reading of today's rules.
Contrast to the processes patented today, where Apple is granted a patent for a left-to-right swiping gesture, or Microsoft a patent for page up/page down, or NTP for email delivery over a wireless signal -- besides being an obvious combination of earlier discoveries, none of these are for a specific, researched and discoverable implementation, but for a broad concept -- and the problem with today's rules, and the threat to innovation is clear.

I understand the concept behind patents and why they're important. Just as we need patent reform, we need tax reform, and the list goes on. Is it important to discuss? Sure, but only in simple terms. We see patent trolls and know they should be reigned in..somehow. We can recognize that the small developer can't afford to defend himself in a patent dispute. Best we can do is hope it gets enough attention that the powers that be make some changes.
Even Nilay reiterates several times he's no expert at patent law and couldn't begin to offer a real solution. And he's a lawyer. I'm sure many who read his article had their eyes glaze over. If you thought that was fun, try reading some tax discussions. It's far easier to look at something you don't understand (and wouldn't want to) and just declare it broken. You just know it needs fixed.
Many problems in tax aren't addressed until the problem gets critical or a lot of negative attention. We saw the debt issue go down to the wire. It's the way our country seems to operate. There's also special interest groups who exert a ton of influence that get in the way of common sense approaches.

If the were clones, it would be good. Since the injuction is because they have rows of icons, a black face, and rounded corners...sorry, that's absurd.

The fact is that Apple has to do whatever it can to stop the copycats. Apple is attempting to take lawful action, and in this case the end certainly seems to justify the means.

We'd all best hope Sony or another large player doesn't request a preliminary injunction against other TV manufacturers for making large black rectangular objects which display television pictures... Because that's the level at which Apple are attacking Android tablets.
The tablet idea wasn't invented by Apple, nor was the touchscreen smart device. I had an HP windows tablet many years before the iPad, and a Palm with a grid of icons on it and a touchscreen many years ago. To be granted a preliminary injunction against a competitor because they've used a black rectangular box with a touchscreen and a grid of icons at this point in proceedings is frankly a joke, shows just how broken the IP system is, and is blatantly disingenuous on the part of apple.
Had they wholesale stolen iOS code and used it to bring product to market, I could understand, but coming up with similar form and function by a parallel route? How anyone can justify this is beyond me, unless you genuinely want a one class of product, one brand allowed to sell market across the board... Which if retrofitted would have been IBM being the only people with rights to sell a personal computer!

Does Sony have a patent on "large black rectangular objects which display television pictures"?

Ridiculous oversimplification and extrapolation.
The fact is that Apple believes that if you look closely you will agree that Android and Samsung clesrly infringe its intellectual property. Therefore, Apple must use proper legal avenues to bring attention to the situation and arrive at a solution. Apple is simply saying, "Competition via innovation is fine but copying via infringement is not. Let the courts decide precisely what is happening in this situation." Seems fair enough to me!

Yes this discussion is important & it matters... But only to us in a tech blog like this. Let's be real. There is too much money at stake in the current patent system for those who profit from it to see or even want it changed. I'm talking to you Apple, Google, Microsoft, Oracle, IBM etc etc etc. Not only do these companies reap big financial gains from this nonsense but think about the other players that are just as important. I'm talking about the lawyers (of course), the courts , the judges, oh & let us not forget the politicians.
The companies are only one piece of this long & confused puzzle. Take the financial incentives out of patents, for all the players involved & you have patent reform. Until that happens, get used to the status quo because it's here to stay.
For those of us in the US this should ring especially true. One of the greatest inventors this country has ever known is Dr. Benjamin Franklin. Yes the one from the $100 dollar bill for those who went to public school & have no idea who he is lol (sad but true they don't teach that much anymore). Dr Franklin is credited with inventing or helping refine over 100 ideas & processes. He chose to simply give them away & not use them for financial gain. His belief was everybody should profit from great ideas. Where is a gentleman or gentle lady such as that in today's world?

The discussion isn't the point -- it is fun, but important only insofar as it impacts policy and law. All the barroom discussions in the world bemoaning Apple this, Google that, NTP the other do not mean a thing if the status quo of patent -everything-the-broader-the-better and approve-first-let-the-courts-hash-it-out is allowed to continue.

The patent system is very complex, and very busy. That makes it appear more broken than it actually is. "Crazy patents" are granted, but most of those are invalidated during re-examination. I have yet to see an example of a "crazy patent" that evidence shows is clearly obvious over, or anticipated by, prior art. I'd like to see one. Novelty and obviousness are hardly ignored by the patent office (nearly every application is rejected once or twice for anticipation or obviousness, and roughly half are never patented). Ideas are "rushed out simply to be patented and bought, sold, and licensed as commodities" because we don't want people to have to spend millions building their time machine before they can patent it. People willfully infringe patents because they know they are immune to judgment (because they have no money) or because they know the patent holder has no money to sue. That's just a feature of commercial law, not particular to the patent system.
There are some serious questions about the way the patent system should be. Should we be "first to invent" or "first inventor to file"? Should there be some sort of escape clause one can use against non-practicing entities? Should software be patentable? These questions need to be answered. But I submit that the fact that there are tons of patents on everything imaginable, and those patents are being enfoced, is not evidence the system is broken. It's evidence that everybody is coming up with ideas, and with so many people innovating, it is, unsurprisingly, difficult to come up with a new, original idea that nobody else has thought of.

Yes, the new look is TOTALLY different, they must have copied Apple because the bezel is smaller and the logo is on the back.

They changed it after the iPad 2 came out.
Trust me dude, I don't believe in Apple's antics. I much prefer my Tab and XOOM to my wife's iPad. Heck, she gets annoyed w/ the iPad not having Android tablet features as well. :)

"They changed it after the iPad 2 came out."
False, the Fat and Slim Galaxy Tab 10.1 have the same front with the same bezels and without Samsung logo. I was talking about the differences between the photo frame and the tab
And the fat one was presented BEFORE the iPad 2.
Trust me dude,

¨What fat Tab?¨
Samsung presented the Galaxy Tab 10.1 before the iPad 2, it was fatter than the one sold now. I have played with it at MWC in Barcelona on Febr
It has been sold on some European countries like Spain or UK as Galaxy Tab 10.1v by Vodafone.
After that, they made a slimmer version, the one I own as a gift to Google I/O attendees.
¨The image you posted had a fat bezel, which my Tab does not have, and a Samsung logo at the bottom, which my Tab does not have.¨
Yes, and? Does it means that they have copied anybody? Does design still constant through time.
The only difference is the amount of bezel and the logo. Do you really think that they aren't related?

Yes, Samsung changed the tab after the iPad 2 came out. Do I think they copied? No. Do I think they took cues from the iPad 2? Yes.
Your history there is proof along with Samsung outright saying they were going to revamp after the iPad 2 unveiling.
Is the original one you saw at MWC as thin as the current one?

yes they took ques from the ipad 2 lol they said it themselves..did the streamline the device yes to better compete and whats wrong with that...any fool can tell a difference,they are different aspects and the back is COMPLETELY different..i think apple are pissed that they held the slimmest tablet title for less than a minute and we all know jobs is all about the thinnest.