Apple vs the World: On the broken state of patent law

(originally posted at amaral-lab.org)

On August 24, 2012, Apple won a huge patent lawsuit against Samsung and was subsequently awarded $1.05 billion in damages, an amount that they are now seeking to triple because the infringement was found to be “willful.” However, this is only the latest battle of a huge litigation war waged by the two tech giants in multiple countries around the world. It also sets the stage for a larger attack on Android, which Steve Jobs in his autobiography claimed was stolen and that he would try to destroy (although I honestly don’t see how anyone could mistake iOS for Android).

The patents that were found to be violated: pinch to zoom, bounce back from scrolling, tap to enlarge, multi-touch sensing, rounded square icons, and the general shape and look of the phone.

The implications from this verdict could be far-reaching. In this modern-day technological age, IP (intellectual property) is becomingly increasingly hard to define, especially given the current state of patent law in the US, which many have decried as being broken. How do we determine the validity of a patent for “swipe to unlock” when it’s the digital equivalent of “turn doorknob to open door”? Incidentally, Apple lost a suit against HTC in the UK over this particular patent, which the judge declared as “obvious.”

Does this mean that tech companies shouldn’t patent? It’s telling that most IP scuffles in the tech industry end in settlement, with both sides agreeing to share a bit of their intellectual property in a fair manner. This is because the industry is so interdependent, and patents exist for everything. Any one device uses scores of patented technologies and hardware that are all essential to its function, and no tech company could possibly exist in isolation. I for one find it highly amusing that Apple itself is Samsung’s largest customer, purchasing over $5 billion (estimated to be as high as $11 billion for 2012) in processors, screens, storage, and other parts from it every year, and Samsung is Apple’s key supplier. The two literally could not survive without each other. Apple’s own iOS uses several technologies that Samsung invented, a fact which Samsung tried to use to countersue, although these efforts proved ultimately unsuccessful.

Let’s just say the Facebook relationship status of these two would be “it’s complicated.”

What is the fall-out from this trial? Most think it’ll lead to many more legal battles, since a precedent has been set that such battles can be won and are highly profitable. Phone makers will shy away from the current standard of smartphone designs, which Apple did indeed pioneer and establish. This could drive innovation, but could also create unnecessary obstacles if phone makers feel they can’t use common-sense features such as “rounded corners” or “slide to unlock.” There could also be a gradual shift away from Android OS, which is the ultimate target of the war Apple is waging. Google realizes that it can no longer afford to sit on the sidelines. The company has already stepped into the fray by capitalizing on its recent purchase of Motorola Mobility, filing a lawsuit against Apple for infringing on a wide range of mobility patents it acquired through the purchase.

Essentially, in an industry 100% dependent on constant innovation, it’s hard to define what is truly innovative, and how much of that innovation rests on what came before it, which is basically a credit assignment problem. How do you determine what is “obvious,” which is to say that this idea would have been independently reached by most people because it naturally follows from what already existed? On the flip side, how do you determine what is “innovative,” which is a significant, novel contribution that would not have existed otherwise? And is it fair to expect overworked, time-limited patent employees to answer these tough questions, answers that are literally responsible for the outcomes of billion-dollar lawsuits around the world?

I don’t have answers to these questions, but I do believe that the patenting of cosmetic features is completely frivolous and wastes both time and money. It’s interesting to compare the tech industry to the fashion sector, which is also predicated on never-ending reinvention and innovation. What would happen if we started to patent “green dresses with zig-zagging dark patterns” or “high-waisted plaid shorts worn with belts”? If it’s ridiculous to patent these design concepts, it should also be ridiculous to patent the “rounded rectangular shape” of the iPad or the “round square icons on a black background” on iPhones (patents which both exist). In fashion, just as in technology, you pay a premium for the brand. Therefore, it’s illegal for knock-off Gucci products to claim to be actual Gucci, but it’s perfectly fine to create discounted items which look highly similar, but don’t carry the same brand name. If Samsung had slapped an Apple logo on all their products and tried to capitalize on their premium brand name, then this would be a clear case of stealing. But technology, just like fashion, follows trends, and the current trend in smartphone technology is to have large touchscreen rectangular phones that are application-based. It is my opinion that you can’t patent trends. And chasing after perceived patent infringements could very well come back to bite Apple in the ass. Because if there’s one thing we know about fads, it’s that they all eventually die away.