"First" and "Obvious"

A device with a touchscreen and a few buttons, I was told by a comment on Hacker News, was obvious. “People don’t own ideas, they are granted temporary monopoly on real innovations so that they, in the short term, and society in the long term, can profit. The question isn’t ‘first,’ the question is ‘obvious.’”

We’re hearing a lot of that—although as Macworld’s Dan Frakes notes, everybody said it was nuts for the iPhone to have no buttons. When it first came out, it wasn’t obvious in that context. Even if first isn’t the legal term of art, it’s an important determining factor: if device X is the first device to do something in a market that’s existed for fifteen years, that something probably wasn’t so obvious.

And that “slide to unlock” patent? I’ve seen a lot of snarky comments claiming that, effectively, sliding door latches should count as prior art. Really? Really? If there’s any previous analogy to a claimed invention, the claim should be denied?

Look. Apple got market share by doing stuff that nobody else in the phone market was doing. There were a lot of similar (but not identical) things that other companies did in bits and pieces, but there simply wasn’t anything else like the iPhone before the iPhone. Ironically, the most revolutionary thing the iPhone brought to the market had nothing to do with what these battles are over: it was the web browser. We already forget just how much it blew the doors off anything available in a device that size in 2007. The biggest sign that Apple got that right is how dominant WebKit-based browsers are on mobile devices now.

A lot of the hatred directed against Apple over their “patent wars” seems to me to be misplaced. Apple is not abusing the patent system. They’re not an Intellectual Ventures style patent troll; they’re actually using the patents that they’re fighting over. And it’s very hard to make a convincing argument that Samsung wasn’t intentionally copying a lot of things about the iPhone. In fact, it’s hard to argue that it didn’t work: the more Samsung made their phones like iPhones, the more successful they got.

There are very good arguments to be made against software patents, even against trade dress patents—and maybe even against patents, period. Maybe patents just don’t do what they were intended to do anymore. But while it may be fair to hold Apple to a higher standard in some respects—not just because they’re the biggest tech company in the world, but because they’ve made high standards part of their brand identity—it’s just not realistic to expect any technology company to take a bold stand against the patent system by refusing to sue over perceived patent violations.

Furthermore, it’s not honest to keep portraying Apple as uniquely litigious in this area; Nokia and Motorola both initiated suits against Apple, and while Microsoft hasn’t been going around suing everyone, they’ve just been collecting license fees on Android from manufacturers. By some estimates they’ve made more money on Android than Google has. And as Jean-Louis Gassée asked,

Last year, Apple and Nokia settled an IP “misunderstanding” that also resulted in a “tax”: Apple paid Nokia more than $600M plus an estimated $11.50 per iPhone sold. Where was the outrage against the “evil,” if hapless, Finnish company?

(And maybe not all that hapless in this specific instance, as Gassée also noted that Nokia may have made more money from iPhones than from selling its own Windows Phones.)

If there’s a problem here—and I think there is—it’s with the patent system. It’s certainly too easy to patent things that shouldn’t be patentable. And maybe part of the solution would, paradoxically, be more regulation, involving compulsory licensing the way copyright collectives like BMI and ASCAP work. But regardless, the Apple-Samsung battle is a symptom of the problem. Don’t mistake it for the disease.

  1. kingshaun1 reblogged this from chipotle
  2. josephschmitt said: A good way to go back and realize just how much of the iPhone was new and original: go back and watch the introduction keynote and listen to the people gasp and cheer.
  3. chipotle posted this