Blog Post

Apple may have won, but software patents are still evil

In one of the biggest court decisions in recent memory for a technology giant, Samsung on Friday lost a billion-dollar patent-infringement case launched by Apple over the design and functionality of the mobile-handset maker’s smartphones. We’ve written about the implications of this ruling for both companies, and where the case stands to go from here, but when you step back from the specifics of this decision itself, it becomes increasingly obvious that we are all losers in this kind of case — because software and design patents are inherently bad, not just for the technology industry but arguably for society as a whole. Apple’s win may satisfy its fans, and Samsung may be able to recover from the ruling, but that doesn’t make it right.

As my colleague Jeff Roberts has reported, this case was launched by Apple against Samsung last year, based on what Apple said was Samsung’s wilful infringement of software-related “utility” patents and four design-related patents it holds for the iPhone and iPad. According to Apple, the company’s smartphones — including the Nexus S, Epic 4G and Galaxy S 4G — copied elements of the design and functionality of Apple’s iPhone models, and the Samsung Galaxy Tab copied design and functional aspects of the iPad. In its statement of claim, which contained drawings that jurors relied on to decide the case, Apple said:

“Rather than innovate and develop its own technology and a unique Samsung style for its smart phone products and computer tablets, Samsung chose to copy Apple’s technology, user interface and innovative style in these infringing products.”

Did Apple really suffer because of another phone’s shape?

From a legal point of view, there appear to be a number of questionable factors involved in the jurors’ decision in this case, at least according to Groklaw, including a debate over whether the jury actually understood the specifics of what they were being asked to do, and whether they ignored certain aspects of the case in their desire to penalize Samsung. That could lead to the case being successfully appealed, but even if it isn’t, or if the appeal fails, the Apple-Samsung decision adds even more weight to the argument that software and design patents are evil and that the entire patent process is badly flawed — if not broken.

As part of the case, Apple obviously argued that it suffered irreparable harm from Samsung’s alleged copying of its design and functionality. But has it really suffered competitively? It’s hard to see how, considering the company is the world’s most valuable publicly-traded entity, with a market value of over $600 billion, and its mobile products are the market leaders in almost every category. How much more successful could it possibly be? And now, the legal ruling gives it even greater power to beat up on Google and Android — is that really a win for the technology industry or for society as a whole? It’s difficult to see how (and let’s not forget that Apple doesn’t need software patents to protect it from knock-offs — it has trademarks, trade dress and a series of other legal tools that will do that too).

Defenders of the case, and of patent laws in general, would likely argue that it doesn’t matter how large or successful Apple is: the point is that Samsung did something wrong. But what exactly do we mean by this statement? Two of the design patents involved in the case describe the way in which the iPhone is rounded at the corners and flat on the top, and another refers to the way that icons appear on the screen. Among the utility patents involved are those related to the “bounce back” or “rubber band” feature in some of Apple’s apps — in which the screen rebounds after the user pulls it in one direction or another — and to the “pinch to zoom” functionality used for images.

One designer said that the pinch-too-zoom gesture has become so ubiquitous for mobile devices and apps of all kinds that it is like claiming ownership over the idea of a circular steering wheel. Would we be better off if one company controlled the rights to the steering wheel and could charge huge sums to all manufacturers for using that design element? Probably not. But Apple could now do this with pinch-to-zoom, as well as other design and utility features, giving it an even bigger lock on the mobile device business than it already has — despite the fact that there is evidence that similar gestures existed before Apple patented them.

Update: Nilay Patel at The Verge notes that none of the patents in the Apple-Samsung case specifically refers to the pinch-to-zoom process, although several cover related multi-touch elements of the interface and one covers the tap-to-zoom gesture.

Software patents are nuclear weapons, not defences

Even if you accept that Apple did something unique and revolutionary with the zoom feature that deserves to be protected by the full force of the law, should it have the same rights to a series of icons that are lined up in a specific way on a mobile device? Or to the fact that its device has a rounded screen, or that a window which pops up on top of another window fades away automatically over time? Or the fact that one of its iPhone icons happens to look like a gear, and another looks like a pad of paper? These are the kinds of things software and design patents can refer to.

The fact that software patents can apply to such obvious-looking or even trivial applications of design and usability is why some have described them as evil, and “a cancer” on the economy and society in general. Others have warned for several years about the coming of a software patent “apocalypse” created by multibillion-dollar technology giants accumulating software patents. And in the end, these cases do little to promote any kind of useful innovation — instead, they just tie up the courts and give some companies a nuclear arsenal they can use to attack competitors.

Even some judges — such as the one who recently ended Apple’s patent lawsuit against Google-owned Motorola — have questioned whether certain industries that already experience plenty of innovation (such as the mobile phone business) need to be protected by patents at all, including software and design patents. And research by Harvard’s Berkman Center for Internet and Society has shown that software patents have provided little or no net social benefit over the past decade, despite billions in lawsuits and various legal victories.

In the end, the important question isn’t whether Apple was right to sue Samsung, or whether the Korean manufacturer directly copied elements of Apple’s design for its phones — the question should be what is gained by allowing companies to launch multibillion-dollar cases involving the shape of icons or the swiping motion that users employ to switch pages.

Post and thumbnail images courtesy of Flickr user Stefan

120 Responses to “Apple may have won, but software patents are still evil”

  1. oohmyygoof,
    grow up. you are not the only human in the word. in fact you are NOTHING in the big picture of things. get your selfishness and greed out of here, its stopping the world from progressing.

  2. Vikram Saxena

    I do not agree with the idea of software patents. It is analogous to the idea of patenting the wheel. What needs to be protected is the process, and the associated IP; not the end-result.

    If a company invests millions in developing software to deliver a particular user-experience, then the company will benefit from that with greater market success. Apple is a great example of that. And that advantage would stick even if others try to copy the end result.

    What most people forget that if something was truly unique and revolutionary, then others will not be able to replicate it with ease. In most of the cases, these patents represent ideas, which any reasonable team of engineers/designers would have come up with when faced with the same problem.

    Anyone who wants to copy the idea has to write their own code, and invest a lot of money to do that. While they are doing it, the pioneer has the market to themselves and will be able to get a return on their investment. It is not that Samsung copied Apple source code.

    And that is what drives innovation, and keeps the developers on their jobs. Apple does a great job of taking ideas of competing products. The WebOS in the HP Touchpad had a cool notification feature, which Apple also integrated within an year. The irony is that Apple has access to the source code for any new feature added to Android due to its open source nature; the reverse is not true.

    If companies could simply sit on their prior innovations, then engineers and designers, those who truly drive innovation would be out of jobs. Our companies will be run by highly paid lawyers and MBAs, while the innovators lay somewhere in the basement. The current state of affairs in the US is a living example of what happens when lawyers and financiers are in control.

    It makes me sad that a company like Apple, known for its innovation, would let the suits trample over the geeks. Perhaps it is a sign that the era of Apple as an innovator is coming to an end.

  3. jackdharma

    I’m betwixt and between on this. On the one hand, if everyone is working to improve a product, that is, taking what exists and making it better (and I’m not claiming this for Samsung, I’m just saying generally), the end result will be a better product, probably cheaper.

    On the other hand, if a company has to develop something new and cannot use what exists, then it will be forced to get creative, and who knows what kind of as-yet unimaginable products might be the result?

    As it is now, for whatever reason, we are in a technologically backward era–lots of innovation, no invention. My grandfather’s generation provided the technology we currently use.

  4. ” is that really a win for the technology industry or for society as a whole?”

    What’s that got to do with anything?

    Apple has a fiduciary responsibility to its shareholders, not “society as a whole”. Its the shareholders that are exactly why patents such as the ones Samsung infringed upon are necessary.

    If innovation is what you want, it’s patents that will allow innovation to flourish. Otherwise, why innovate and allow others to capitalize on your accomishments?

  5. Hi. As someone who relies IP to differentiate my services it seems reasonable that Apple should fight their corner.

    No idea is original perhaps but it mostly takes hard work and time to ‘join the dots’ and create something innovative. Samsung just seemed to borrow the form factor and Android – is that really technical advance?

    • The problem is really that Apple only innovate about half the stuff they pretend to. One patent they tried to file for the iPhone was for ‘a visuo-sensory input system for portable devices’. The problem? I remember touch screens being around in the late 1990s, and as for capacitive touch screens, Wikipedia tells me they were invented in the 1970s. Shifting them from computers to cell phones is such an obvious step, and that’s why the patent was refused, leaving Nintendo free to use a touch screen on the DS.

  6. “I agree with having your physical design patented since it is the way your customers are going to recognize your product in the stores.”
    Not really. When I want to know which company made what product, I don’t look at its shape, I read the name printed on it. Similar design could only be a problem with identical names in such a case, and that could never happen thanks to trademarks.
    Your argument has been thrown back. Please check and re-analyse it.

  7. Amergin

    Late to the debate, but I was an early software developer on Apple IIs and Macs and I refused to patent my stuff on principle. The company I founded and then handed on to my brothers in law was sued in the late nineties for patent infringement for stuff I had developed years before the patents were awarded (color separation stuff). The legal costs to defend the issue were estimated at $1m per week and, even though we were assured we could eventually win, the company was closed as the possibility of losing that much was too big a risk. The company that sued had not written a single line of code, they had just bought out companies going under. I don’t mind personally, I’m fine, but many people lost their jobs and both of my brothers in law are now employees rather than employers (they are in pretty good jobs though). I have stood by Apple for over thirty years but as it moves into the same areas as IBM and Microsoft I find it pointless even trying to defend it.

    • To further add to the argument, designs are already copyrightable in the U.S. as they are in the UK, so patenting them is a waste of registration fees at the wrong organisation. The USCO should be getting registration fees, and the UKIPO need not be bothered at all.

  8. Perhaps it would be less contentious to be more explicit and say “Trivial software patents are evil”.

    We still need a way to incentivize the first mover innovators, and not reward others for waiting around to copy. I would argue consumers lose out otherwise.

  9. Chris H

    I believe that at one stage, Henry Ford may have held a patent for the round steering wheel. Prior to this innovation, the steering mechanism for horseless carriages was a tiller.

  10. My 60-yrs-old mother-in-law went to an operator managed store (3 Italia) wishing to buy an iPhone, but she came back home with a Samsung Galaxy S ’cause it was less expensive and because she was hinted to buy it by the operator store guy (and we all know how much more convenient it is for an operator to sell an android phone than an iPhone)!
    And you know what? She was truly convinced she had bought an iPhone!
    That’s where Samsung harmed Apple… And I know many other non-tech people who ended up the exact same way!
    I’m both an apple and android user (iPhone 4 and HTC One S), and I am perfectly able to distinguish between an iPhone and a Galaxy, but many (many!) non-techies can’t easily understand such differences!

  11. Hendrik Mentz

    I am not a techie. I am writing a book. That book contains some ideas that, if good, will catch on and be repeated by others, including in print. As a writer it would be naive to believe I could own an idea. In fact, as Dawkins pointed out, an idea (or what he termed a ‘meme’) owns and uses people to propagate in order to improve. Just like Samsung and HTC designs have improved on the – to my mind – increasingly clunky-looking iPhone. ‘ay, there’s the rub’  (Shakespeare)