Patently Obvious: Pitiful Patent System Has to Go

At the risk of stating the obvious, I’ll say this right up front: The patent system in both Europe and the United States is the biggest threat to innovation in the world today. Rather than competing with each other on price and features, the biggest tech companies want to fight it out in court where some Luddite judge—rather than the market—can decide who wins and loses. By claiming that another company has violated some  vague patent, one vendor can use the legal system to either block rival products from the market or demand hefty kickbacks (a.k.a. licensing fees) from their makers. 

This long-simmering problem reached a boiling point yesterday when a German court ordered Samsung to pull the Galaxy Tab 10.1 from all European shelves immediately, based on Apple’s claim that the Korean electronics giant was violating its design patents. If you take a look at the design patent in question, it looks like it could apply to just about any tablet on the market today and many that existed in past—even before the iPad came out in 2010.

My fellow journalists are understandably outraged at the German court’s decision. “Tablets and its smaller sibling smartphone are devices that are similar no matter who makes them,” writes ZDNet’s James Kendrick. “The function of these devices leaves little room to make the appearance of them distinctive, and that’s why this injunction is insane.”

“How can Apple patent an entire product category?” asks Nicole  Scott in a column on Netbook News. “At any moment Apple could decide that any tablet is too much competition and file a suit!” 

The problem here isn’t Apple, which managed to block the Galaxy Tab 10.1 in Australia and is also pursuing similar injunctions against Samsung in the U.S. and against Motorola for the Xoom, among other competitors. It’s a broken system that allows the paper-pushing patsies at U.S. and European patent offices to arbitrarily hand out industry-crushing weapons to whomever draws the best line drawing and hands it in first.

So many patents cover ideas that any monkey could write up if locked in a room with a typewriter for a weekend. In 1999, some technophobic tool in the government approved Amazon’s application to patent the concept of one-click ordering. As a result, competitors such as Barnes & Noble had to add superfluous clicks to their shopping systems, and others such as Apple’s iTunes Store had to pay licensing fees just to use the idea of clicking a single time to buy something.

It’s a good thing that nobody at McDonald’s patented the idea of single request ordering in restaurants or else you’d have to say “I want fries with that. Yes, I’m sure I really want fries with that” when filling up at Burger King.

Another patent licenses simply the idea of an online backup system. What will you dream up next, captain obvious? And how much power will the lame-brained lackeys at the patent office grant you? 

It’s bad enough that big-time industry players such as Apple, Google, and Microsoft stifle their competitors, but there are now a host of “patent troll” companies who don’t make or invent anything, but hold large portfolios of broad patents and use them as licenses to sue or collect licensing fees. When it comes to protection rackets, La Cosa Nostra could learn a thing or two from companies such as Lodsys, which is now demanding licensing fees from app developers, claiming that it owns a patent on in-app shopping.

Unfortunately, it’s not the Samsungs of the world who are most hurt by putrid patents. It’s you. Large companies have the resources to fight these battles out in court, to use the threat of enforcing their own ridiculous patents as leverage in a cold war with other vendors, or to pay licensing fees such as the one HTC gives to Microsoft for every Android phone it sells.

Ultimately, you bear the burden of these lawsuits, patent acquisitions, and protection kickbacks in the form of higher device prices. Even worse, you lose your freedom of choice as smaller players are forced out of the market and larger players are discouraged from innovating. If you’re an entrepreneur that has dreams about building  a better mousetrap on your own, forget about it. Someone else has probably already patented the idea of “mousetraps that are better than previous ones.”  

If you’re a software developer, a hardware engineer, or even a mailroom worker who might be employed by a technology company, the patent system could cost you a job as companies spend more money on lawyers and less on producing new products. Do we really need fewer job opportunities in this economy?

A consortium led by Apple, RIM, and Microsoft just spent $4.5 billion to acquire Nortel’s patents. That’s enough money to pay 45,000 people a $100,000 salary for a year (not counting benefits or taxes). That’s enough developers and engineers to advance these companies’ core products by light years. Apple could shoot up to the equivalent of the iPad 6, Microsoft could fast forward  to Windows Phone 10, and RIM could finally release a phone that’s only a few months, rather than years behind the competition.  Instead, they’ll use the money to stockpile IP for patent wars they should never have to fight.

This week, entrepreneur and Dallas Mavericks owner Mark Cuban strongly suggested that the U.S. eliminate software and business process patents. He writes:

If you create a new process, use it. The benefit is from creating the idea and using it in a business to your advantage. Afraid that some big company might steal the idea ? That is life. When you run with the elephants there are the quick and the dead. That is a challenge every small company faces. A process patent is not going to make your business successful. The successful execution of business processes will.

I wish the world would listen to Cuban, but sadly the very people who agree with him are arming themselves with even more patents. Last week, Google’s David Drummond wrote a blog post, criticizing the patent bubble and competitors for trying to “strangle” Android with licensing fees, but then promising “to reduce the anti-competitive threats against Android by strengthening our own patent portfolio.” 

You really can’t blame Google for arming itself when there’s no sheriff in town to protect its interests. But barring a massive change in patent laws in both the U.S. and Europe, you’ll continue to fund the armory. 

Online Editorial Director Avram Piltch oversees the production and infrastructure of LAPTOP’s web site. With a reputation as the staff’s biggest geek, he has also helped develop a number of LAPTOP’s custom tests, including the LAPTOP Battery Test. Catch the Geek’s Geek column here every week or follow Avram on twitter.


AUTHOR BIO
Avram Piltch
Avram Piltch
The official Geeks Geek, as his weekly column is titled, Avram Piltch has guided the editorial and production of Laptopmag.com since 2007. With his technical knowledge and passion for testing, Avram programmed several of LAPTOP's real-world benchmarks, including the LAPTOP Battery Test. He holds a master’s degree in English from NYU.
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  1. shimmer Says:

    The author clearly has no understanding of patent law and its purpose in protecting not only technology but also medicinal inventions. These lawsuits are about leverage and negotiation, more so than about injunctions. If the company’s brass didn’t have such big egos, settlements would clearly be more financially reasonable than pursuing litigation from a long term point of view.

    Besides, the fault is not on the companies using these patents. Rather, the fault is on the USPTO and their inability to assess what can be patented and what can not. That is the issue.

    Patents once issued are fair game, whether they are used as a leverage tactic or a monopoly tactic, after all a patent gives the patent holder the right to exclude for a certain limited amount of time.

    The USPTO needs to be fixed.

  2. TemporalBeing Says:

    Well, you need to look up several things about what the court rules on in Germany, and perhaps OSNews can help you out on that one – see this article: http://osne.ws/jc0

    Essentially, a Community Design is somewhere between a Trade Mark and a Patent, has no review as to whether it is valid, and the courts have to assume it is valid by law. Additionally, the German court apparently does not require any notification to the defendant, and the result takes affect across all of the EU.

    Now, I’m not a lawyer, but there’s something fishy about Community Designs by that description.

    Also, whether or not this would affect Android directly depends on what the Community Design is for – is it for software? (not likely) or hardware? If hardware, then Android has nothing to do with it, so neither would Google (necessarily).

  3. Alan Says:

    The way to fix the USPTO is to outlaw software and business process patents. Simple.

  4. Ko Says:

    @shimmer – Couldn’t agree more. In addition, this is not a new issue by any means. Look at Polaroid, they successfully stifled competition until the advent of Digital photography.

  5. You Says:

    @shimmer

    it’s you that does not understand patent law, or should I say the nature of it. Why does it exist? It’s for the protection of those that spend the time and energy to come up with valuable new technology (medicine included), thereby encouraging innovation since you’ll be “protected”.

    The problem is if you look at the history from the time patents came into use, the NET effect has been that it stifles innovation, yes you read that right. Instead of protecting and encouraging innovation it does the exact opposite.

    So it’s not just the USPTO, they’re just a symptom of the real problem. I encourage you to do research with an open mind and you’ll come to the same conclusions.

  6. Tom Says:

    @shimmer, @Ko, @You. I concur. If you cannot protect your idea, work, product, then you would not have anything as it could be stolen without recourse. Yes there are problems,

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