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Broad patents are bad for consumers

TechRepublic member dcolbert expresses his concern about Apple's patent lawsuits against HTC and what it means about the patent system and how the U.S. government deals with corporations and corporate intellectual property.

Everyone has chimed in on the Apple patent lawsuits against HTC – about how they are a proxy war against Google Android and what it means for HTC, other Android phone manufacturers, and even Windows Mobile 7. However, I have other concerns. I'm worried about what it means about our patent system (and how the government deals with corporations and corporate intellectual property in a much broader sense).

Our government is led by grandfathers and technophobes. It was front page news when the President of the United States insisted that he keep his indispensable BlackBerry – not because a BlackBerry was the leading edge of technology, but because seeing a government official using a mature device with a huge presence in private industry was completely novel.

Lawmakers – congressmen, senators, judges, and even state and local government officials – make the laws and regulations that are the framework for business in which technology manufacturers must operate. Unfortunately, the laws are frequently too poorly equipped to deal with the unique circumstances of technological innovation and design. There are loopholes, and vaguely defined regulations are twisted, distorted, and exploited where possible – often with an unfair impact against competitors and consumers.

Let’s take a look at the evolution of the PC market. IBM designed the original PC, Model 5150. If you've got a desktop, tower, or even a laptop (including an Intel Mac), the basic design and architecture of your machine traces a very direct and relatively still compatible lineage back to this original IBM machine made from "off-the-shelf" parts. That was IBM's goal – they wanted to create an inexpensive, easy to manufacture, non-custom business computing device. The problem was that anyone could assemble the same parts, off the shelf, to make a "clone" or "compatible" that functioned the same as an IBM PC, and companies did just that.

Originally, it was mostly Asian companies making knock-offs, with a trickle of those actually making it to the United States, and IBM largely ignored the issue. But a couple of these companies started growing in size until the competition was formidable enough that IBM could no longer ignore it. One of these companies was Compaq. Like Apple today, IBM was using "parts is parts" PC components, but they had custom code that made their machine "unique." Phoenix developed a BIOS from scratch that was compatible – not a clone – with IBM's custom BIOS. For a number of reasons, IBM did not pursue Phoenix.

Other compatible BIOS ROMs were designed as well, and as a rule, IBM only went after the clones – the machines with a BIOS that were obviously a reverse-engineered copy of the protected IBM BIOS code. IBM eventually sued Compaq, but the BIOS held up in court, in large part because of the precedent that IBM did not protect their IP and patent rights by litigating when they were aware of earlier violations.

This is important today for a number of reasons. Mainly, poorly thought out, draconian patent and other IP laws would probably change the outcome of this historical legal battle, and if that had been the case, the public would have suffered. There’s no doubt that there would have been less innovation, less competition, and prices would have remained artificially high. This is the result of a pro-corporate political structure that puts the interests of corporations ahead of the interests of society.

I like to use an analogy of the automotive industry. I'm ignorant of the legal history of how so much of the basic design of an automobile ended up freely distributable. I'm not sure why some company didn't end up with a patent on the design of the push-rod internal combustion engine, or rack-and-pinion steering, or drum or disc breaks, or countless other extremely complex technologies that seem to be available to be engineered into every manufacturer's vehicles. But thank goodness it happened!

Can you imagine a world where the only cars with steering wheels and break, gas, and clutch pedals were GM cars, because GM had come up with a patent on the "unique method of interfacing with a motor vehicle for the purpose of control of direction, speed, stopping, and gear selection?” Ford, Toyota, Mercedes, Fiat, BMW, and everyone else would have had to come up with a unique design that in no way appeared to infringe on the GM approach to this aspect of automotive locomotion.

Right now, if you learn how to drive a 5 speed manual Chevy in America, and you find yourself in a Vauxhaul 5 speed in London, you might have some trouble figuring out how to get into reverse, but the overall mechanics of operation are identical – even sitting on the "wrong" side of the car. But in this bizzaro alternate world, a GM driver might be totally bewildered in a Toyota, a Toyota driver might never be able to figure out how to get out of park in a BMW, and a BMW driver might insist that the control mechanism of a Mercedes was absolute bloatware.

It is probable that the one single manufacturer with the "best" interface for user control would be far and away the most dominant car manufacturer on the planet – and other things, like price, quality, and safety would suffer. "Sure, the Mercedes is safer and less expensive than the GM, but only if you can figure out how to get it started and out of your driveway."

In my mind, the current Apple patents, legal or not, present the possibility of a future personal computing experience as bleak and factioned, or as solely controlled, as the automotive scenario I described above. It isn't Apple's fault, and I don't blame them, because they are a for-profit corporation driven to deliver the best results possible for their shareholders.

If Apple can manipulate the current political and economic climate to their advantage and against their competition, it would be a foolish corporate decision not to. But corporations are like the fat kid that can't see the consequence of gorging on the unguarded box of chocolates today and end up in the fetal position with stomach cramps tomorrow.

Intellectual property rights exist for a very good reason. Inventors and creators should be able to profit from their efforts. But rational limitations are in place for a reason as well. Someone has to tell the fat kid that he’s had enough chocolate and that it’s going to make him sick. Right now, our government is acting like the indulgent, irresponsible adult by not only letting the kid gorge himself, but also by taking part.

The reasons why politicians and judges continue to uphold such grievously misguided and unbalanced corporate protections are clear – greed and corruption. These companies are large enough, powerful enough, and with deep enough pockets that no politician can bear the consequences of doing the “right” thing.

Unfortunately, consumers are also to blame, because we can control the profits and sales of these large corporations, and we can control who gets elected or who gets booted out of office. However, we're so easily distracted by a shiny new touch-screen device that we don't exercise that control.

"More Orwellian tracking of my every move? The ability to remotely turn on the microphone on my phone and listen to my conversations? Automatically deciding which friend's wall post is going to display on my news feed? Whatever, as long as it has the latest version of Super Monkey Ball and can play YouTube videos!"

It’s up to us as consumers and citizens to send a message to companies and politicians that we won't have these liberties and freedoms eroded, that we see through the way in which they are tightening their control over our digital lives.

Photo: TUAW

Yeah, those insignificant little Apple lawsuits against HTC are a critical part of an issue that’s enormous and wide ranging. A decision of sanity is one that benefits the consumer and does not drive companies to rush to patent a general "form follows function" concept before anyone else who has come up with the same idea around the same time. It’s one that makes companies compete for consumers on real value differences – price, quality, actually unique approaches to addressing a need – not on if multi-touch is some kind of unique idea.

Heck, have you ever tried to open a bag of microwave popcorn with a single hand? Or button your pants? Hopefully Apple doesn't go after those examples of violation of their multi-touch technology patents.

What do you think? Have I been wearing my tin-foil hat for too long or are corporations and politicians involved in collusion and possible corruption that threatens to derail the way our free market economy is supposed to operate? Let me know your opinion in the feedback section.

About

Donovan Colbert has over 16 years of experience in the IT Industry. He's worked in help-desk, enterprise software support, systems administration and engineering, IT management, and is a regular contributor for TechRepublic. Currently, his profession...

33 comments
bowenw
bowenw

Actually the automobile industry, in its first 2 decades, WAS beset by some of the same kind of issues. Google the term "Seldon Patent" and you'll be greeted with a blizzard of information, but check out the Wikipedia page first as it has a good summary. It was Henry Ford getting sick of having to pay royalties on a patent he felt was overly broad and invalid that saved the day - he sued and got the Seldon patent invalidated. There are hundered, if not thousands, of computer-related patents that are GARBAGE - either invalid by "prior art" or being "obvious". My brother-in-law works for the PTO as an examiner and those folks are so buried in backlog and technology over their head that they really don't have the capability to sort out the garbage (like Microsoft's FAT patent, which a blatant case of "prior art") from the real thing. Add to that the cost of invalidating an issued patent AND the basic issue I have with the whole idea of "software patents" and what we have here is one pile of "not so good". Various international agreements the US has signed has made the situation even worse and skewed the system more to the advantage of deep-pockets like patent trolls and ego-driven jerks like Steve Jobs. I could write a 20 page article on what is wrong, but I'll leave it at that. I have my doubts the system will ever be reformed in my lifetime.

AnsuGisalas
AnsuGisalas

What do you think would work to cut the consumer some slack without killing the drive to do research? How do you think monopoly/cartel/anti-trust regulation with exclusive patents to ensure a fair pricing and a viable licensing market?

NickNielsen
NickNielsen

I think you've got it figured out. Even though it's Apple that filed the suit, I don't see much difference between them and the patent trolls.

yobtaf
yobtaf

Can get to the point quicker?

Vulpinemac
Vulpinemac

I don't know why you would choose to focus on Apple, when Microsoft is by far the biggest victim from patent trolls using far less specific documentation. From what I've seen of Apple's patents, they go down to specific methodology and technologies of their concepts and are usually able to demonstrate an operating prototype compared to these other trolls. Even so, your automotive examples also show a lack of historical knowledge, since things like carburetors and other engine or body components were all patented and the patent holders usually 'licensed' the technology to other automakers. What's worse, though, is your lack of knowledge of different automotive brands, claiming that Vauxhall is different from GM, even though most Vauxhall models are built by Opel, which is a GM brand--with the logical extension that Vauxhall itself is a GM brand. My point is that while in general I agree with your headline, Apple is hardly the example I would use as reference, except maybe as a victim. Microsoft, however, is much the larger victim when you consider how much they've had to pay out to patent trolls.

dcolbert
dcolbert

And, just so that I'm not accused of being a Microsoft fanboy with blinders on when it isn't Apple that is up to this kind of poor behavior - Looks like Microsoft is playing the same game and targeting Android directly, in a classic example of "business and politics make for strange bedfellows". You would think Microsoft would be content to let Google and Android plague Apple. This may indicate that Microsoft thinks that Android has the stronger long term strategic position... Or simply that Microsoft has decided that Google is the weaker dog and that it should take that beast on first before going after the big dog.

m5z06
m5z06

The article is provocative but a bit alarmist. For example, the internal combustion engine, disk and drum brakes, etc., are technologies all more than 100 years old already. Keep in mind the term of a patent is 20 years from the date of application, and the application process itself takes about 3 years, so you are talking about a 17 year term. Further, a patent cannot be obtained more than one year after the corresponding product is publicly sold. So none of the scary scenarios you presented about cars were even possible in any case. Most of the car companies you mention did not exist 80+ years ago. Keep in mind that patent scope has at least two senses - technological scope and temporal scope. Temporal scope is an element of "breadth" as well.

oldbaritone
oldbaritone

"no politician can bear the consequences of doing the ?right? thing." That was one of the major reasons that the judiciary were not made subject to the same political whims as the legislative and executive branches, when the founding fathers created the Constitution. The hope was to make the judiciary independent, because they would not be "politicians" in the sense of the other offices. Does it work? Certainly, it's not a perfect system, but I can't think of a way to change it that would make it "ideal" - which is something different for each person you ask.

dcolbert
dcolbert

"and skewed the system more to the advantage of deep-pockets like patent trolls and ego-driven jerks like Steve Jobs." That is the reality of it. If you're anywhere near the territory of a corporation with deep pockets and you end up on their radar, you'll have to give-in - they'll drag you through the courts until you're bankrupt. It isn't a system that favors innovation and upstarts. And you're probably right - it'll remain this way. The only time we see upstarts succeed is when they come up with something so out of left-field that it catches the incumbents with their pants down - because they've dismissed whatever it is as not an important market. This doesn't happen very often, though.

dcolbert
dcolbert

This *is* one of the short ones. :) I don't write for the "TLDNR" crowd - and really agree with the Ents... if a thing is worth saying, it is worth taking a while to say it. 30 second sound-bite society leaves me unimpressed. But this is arguably a personal short-coming of mine.

dcolbert
dcolbert

Vulpine, you said, " most Vauxhall models are... [] ...a GM brand." That wasn't my point. My point was that if you drive a domestic Chevy 5 speed manual shift pattern, you're likely to have some difficulty with a European Vauxhall 5 speed shift pattern's reverse. Doesn't matter that Vauxhall is a European GM marquee - the point is solid. You ALSO said, "Even so, your automotive examples also show a lack of historical knowledge, since things like carburetors and other engine or body components were all patented and the patent holders usually 'licensed' the technology to other automakers." To which I'd point out, my original post said, clearly, "I?m ignorant of the legal history of how so much of the basic design of an automobile ended up freely distributable..." Which, I believe, is enough of a disclaimer to cover your complaint. Although I'd love to see source citations of your claim that automotive components were patented and used by other manufacturers under license. In particular, as it relates to *this* argument, I'd like to see who held, and licensed, the patent to the *steering wheel* - which to me, is analogous to a patent on something as plainly obvious and intuitive as "multi-touch" technology. When I wrote this, Apple was in the news for going after HTC, and Google by Proxy, for multi-touch and other patent "infringements". That is why I went after Apple. In this thread, I'll point out, I've pointed out that Microsoft is evidently up to similar games, themselves. So again, I'm not sure what point you were driving at with this response, Vulpine, but it seems to me you've missed your mark.

dcolbert
dcolbert

I'm not so certain that the scenarios I present are alarmist - in particular because the pace of technological advancement is so rapid that patent length limits that made sense during the industrial age are not meaningful during the technology/information age. Even still, a 20 year patent on something like the steering wheel - granted to one of the early auto manufacturers in the late 1800/early 1900s would likely have given that manufacturer an insurmountable lead over the competition (which would have been forced to come up with something *other* than a steering wheel). The fact is, though, that the automotive industry took a lot longer to mature than modern technology industries take. The Age of the PC is arguably wanning after roughly 30 years - to be replaced by the personal mobile electronic device. The automotive industry was just maturing after 30 years. That is really my point. Apple's attempt to patent multi-touch technology for a period of 20 (17) years could (is likely to) be completely distruptive to the mobile-electronics industry. By the time that the patent runs out, mutli-touch technology will probably be as relevant as rotary-dial telephone technology is to the telco industry today. Things move too fast and patents will be irrelevant by the time they open up. Slow moving, industrial-oriented patent law is badly suited to provide equitable protection to innovators in a technology oriented business. Something needs to be re-thought. "Grandfathers and technophobes writing laws". There is a disconnect between lawmakers and technology. "This kind of law making has served us well for over 100 years..." seems to be the thinking - but the industry it is dealing with today doesn't move like the Widget and Cog Producing industries of 100 years ago. Your argument seems static and focused on the suitability of patent law historically - not dynamic and understanding of how fundamentally different today's technology industries are than the industrial manufacturing industries for which patent law was designed to assist. Maybe I'm wrong. I'm a layman in legal matters, and you're obviously a professional. But it sure seems disconcerting from where I sit. I'm going to go out on a limb and guess that most other laypeople will tend to see things from my perspective, and (perhaps with good reason) have their doubts about how impartial parties working in the legal profession are in judging the impact these cases will have on mobile electronic techologies.

AnsuGisalas
AnsuGisalas

To err is human, but to think that 17 years is a short time in IT... that takes some doing! Also, they were retrospect examples; the object was (explicitly and very obviously) to show that we would've been so screwed if patent laws had been enforced back then the way they are now, i.e. that the way they are enforced now is severely broken. Which is the point of the article.

pshore73
pshore73

As I understand it a patent doesn't stop company X from using company Y's technology, it just stops them from using it without paying for it. There are plenty of technologies (the broad sense of the word) which company X licenses from company Y. So I do not think that patents are going to cause the colapse of society as we know it.

dcolbert
dcolbert

I don't come up with actual answers, just complain about the problems. It is a pretty good gig. Honestly, obviously issues like these are a delicate balance. My real feeling is that Apple's present course is ultimately self-destructive, and a repeat of their actions with the original Mac Classic OS in many ways. There was a point where every lawyer in every brand new 325i convertible in every town had a mutli-color Apple logo sticker on the side window of their bimmer. They managed to leverage that early "lead" among the hip, wealthy and trendy into near bankruptcy in just about a decade while Windows 3.1 went from a curiosity to the market dominating OS platform. That is, I think this problem is ultimately self-correcting - but I think there could be considerable pain for consumers in the meantime. With that said, a *great* step would be in having more actually technology literate lawmakers, judges and other policy makers in Government. I also think there is currently a fundamental corruption in our nation between politics and big corporations - but I think that is a bigger issue that isn't on-topic for Tech Republic.

dcolbert
dcolbert

The Microsoft HTC patent suits have been settled *already*? Or are you saying that the HTC loss to Microsoft is inevitable?

gharlow
gharlow

I have no problem with a specific mousetrap design being patented, but a device, object or contraption the purpose of which is to trap, capture or otherwise eliminate mice seems a little broad eh? Same with multi-touch. If Apple uses specific hardware and software and someone copies this code that would be a violation of their patent. Because someone figures out how to accomplish this another way is not. New technology would be better served with a model closer to copyrights than patents. In other words if it is clear someone plagiarized someones work boom, but you could not lock down say a love story...

dcolbert
dcolbert

I've thought about the licensing example... 1: Is the patent holder *forced* to license? Or to price licensing reasonably? Or can they refuse to license, or to price so unreasonably as to make licensing not a practical alternative? 2: Is it fair to force someone to LICENSE something that is a common sense, intuitive approach to accomplishing a task? Again, I'll use the example, if Apple has a patent on mutli-touch, and I going to be forced to pay a licensing fee to Apple every time I button my pants or tie my shoelaces? I'm OK with Apple developing a proprietary technology that makes their LCDs respond to multi-touch input and developing an exclusive patent on that TECHNOLOGY. I don't think that should prevent some other company from developing an alternate method to accomplish the same goal. If you can prove that company B has stolen Apple's *technology*, then you've got a case for patent infringement. If they've come up with a unique technology that achieves the same end result, you don't. That seems *reasonable* to me. Of course, we've got politicians, corporations with deep pockets and lots of money involved here, so logic and reason are the first thing to go right out the window. I think Apple's patents may do irreperable harm to the smart-phone industry for the foreseeable future depending on how their current range of patent lawsuits end up in court. I believe the market will eventually most likely correct, but I'd rather not suffer inferior, over-priced products for the next 20(17) years while that happens. Society will go on, but consumers will lose for the foreseeable future - and Apple alone will win. That doesn't seem like an ideal situation, unless you're an Apple shareholder, employee or lawyer. Somewhere on the internet there was once a site of "silly patents" (and there are a billion of 'em). It probably still exists. One of the patents was a method of putting yourself in a swing (like a children's playset swing) and rocking it in a different method than normal. This patent was granted as a unique and innovative method. To me, that illustrates the problem with patent law as it is currently applied (and I believe the purpose of the web-site creator I mention was to illustrate the same). Laying on a swing, facing down, with the seat slightly beneath your chest, and twisting around until the chain bunches up, then lifting your legs so that you "spin" like a helicopter should not be something that someone can put a patent on. If you design an alternative swing that achieves this same experience through different TECHNOLOGY, that should be something you can patent. http://www.google.com/#hl=en&source=hp&q=swing+method+patent+silly&aq=f&aqi=&aql=&oq=&gs_rfai=&fp=ef6e971561b14b8b Hit # 1 on a google search.

dcolbert
dcolbert

Is the root of the problem. Laws like these should serve the common good of society, by protecting an individual or corporation's unique and innovative work by allowing them to profit, solely, from those efforts for a period of time. This encourages development and innovation. But they also should protect the good of society, by encouraging fair market competition - by allowing the latitude for competitors to address the same goal through different techniques and/or application of technology. Right now, as patent law works, it doesn't work this way, it tends to stifle innovation and competition, for the sole benefit of large corporations and the politicians in their pockets. That isn't good, for businesses, for society, for the consumers, or anyone else, except those who cash in, short-term off of the corruption and greed that perpetuates this kind of abuse of law.

AnsuGisalas
AnsuGisalas

If IT department lay-offs are based on who has low turnover logs. If the industry doesn't understand, how can legislators?

dcolbert
dcolbert

Even better than mine. Vaguely enough defined, the "mousetrap" patent could be abused to be applied to all devices designed to try and capture an animal. "I'm making a Road Runner Trap!" "Yes, but Acme makes the mouse trap, and your Road Runner Trap in fact, is designed to capture an animal, is it not?" "Why yes, it is... but it is a bird, not a mouse". "Still, an animal. It infringes on our patent. You'll need to cease and desist, Coyote, or we will bring the full might of Acme corporation and all of our legal team to bear against you"... "Dude, I'm just a coyote trying to catch myself a meal"... "We'll license you the Acme (R) MouseTrap technology for use in your Road Runner Trap, for one bajillion dollars"... "I don't have that kind of money"... "Hmmmnnnn.... tough. You know, version 2.0 of Acme (R) Mouse Trap might introduce a Road Runner Capture feature. You should keep your eye on it, it'll only retail for $1000. There will be more info in our next Keynote event this fall"... "Dude! My Road Runner trap was going to carry a suggested list price of $150". "Wow... that sucks... Good thing we had a patent on animal catching technology. We would have had a tough time keeping our investors happy with a product like that on the market, for that price. Anyhow, good luck, Coyote. We'll be keeping our eye on you". (Coyote stumbles off, trying to comprehend the fact that he has been an advocate and defender of Acme corporation for years, and now they're pulling *this* kind of thing on him... he can barely believe it, and considers switching back to Anvil Corp products, even though he always thought they were an evil and dispicable corporation...)

AnsuGisalas
AnsuGisalas

The one's that don't give hoot, but are told by their sponsors what to think when in doubt.

dcolbert
dcolbert

This isn't so much about Apple or HTC or Google or even patent law specifically. I think it boils down to two class of lawmakers: Those that do not see the problem (the old school). Those that see the problem, but are bought by those who profit because of the problem. The second class hides behind the first class - claiming ignorance.

NickNielsen
NickNielsen

Every time I see a particularly thoughtless or stupid configuration in a new system, I'll go to Patently Silly just so I'm reminded that it could be worse... ;)

dcolbert
dcolbert

Somebody ends up flagging my posts as SPAM. :) But yes, this is the site I was thinking about. Thanks!