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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...

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