As Apple racks up more and more favorable judicial rulings based on dubious patents and legal arguments that defy logic, it becomes more and more obvious that Apple is trying to exploit flaws and loopholes in the patent system to stifle competition and corner the market for smartphones and tablets. While I previously presented evidence that Apple is, in fact, doing so, judicial decisions circulating around the Internet since then have caused many of you to wonder how Apple keeps getting away with such blatant manipulation. Broad, vague language on the patents themselves, misguided efforts at “reform,” and an analysis of human nature will provide further insight into this matter.
The broader, the better
Many observers have long criticized the broad, vague language that characterizes many technology patents today, and the media has coined patent phrases that reflect this growing public disgust. This is not just a flaw in the patent system, however – this is by design. It’s in a corporation’s best interest to describe a technology it wishes to patent in the broadest, vaguest terms possible, to give them the strongest legal ammunition possible to use against anyone who markets a product even remotely similar to the one patented. Apple is legendary for this practice, and it is not at all by accident.
Just consider some of the most widely used patent descriptions coined by legal analysts and the tech media: “data tapping,” “slide to unlock,” “unified search,” “black rectangular slab with rounded corners.” All of these patents are owned by Apple. Granted, these catchphrases do not quote directly from the language in the patent itself, because that language is actually designed to further obscure the technology referred to by using “descriptive” jargon. For example, the “data tapping” patent is summarized as “System and method for performing an action on a structure in computer-generated data” on the patent document itself.
So why do patent officials and judges allow such broad, vague terminology? Well, for one thing, many public officials are ill-equipped to evaluate the validity of technology-based patents, be it because of their age, detachment from the world of technology, or even detachment from the affairs of everyday life. As Donovan Colbert of TechRepublic put it, “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.”
Another reason is that public officials have a tendency to put corporate interests ahead of the interests of society as a whole, according to Colbert. Especially could this be so in an election year when nearly every campaign ad you’ll see this year will feature the buzzwords “jobs,” “unemployment,” “overstepping,” “regulations,” “spending,” and “economy.” Without going too deeply into political issues, as both Rootzwiki and I are politically neutral, I will make a statement to human nature. Those running for public office this year would likely be loathe to be seen as opposing enormous “job creators” like Apple, Google, Microsoft, and Motorola. Meanwhile, overseas companies such as HTC and Samsung could easily be viewed as some other country’s problem.
You invent it, Apple patents it and actually sues YOU for infringement
As if Apple’s practices of filing broad, vaguely defined patents for the obvious purpose of eliminating competition via litigation isn’t offensive enough, imagine Apple dragging you to court because they patented something YOU invented! This seems to be Apple’s strategy for the near future, as evidenced by a patent awarded to it on Tuesday, July 3, 2012. Long after Google’s “Project Glass” has become widely known and even publicly demonstrated, Apple was recently awarded a patent for its own “Peripheral treatment for head-mounted displays.” I found an interesting take on this development here, complete with a closer examination of the patent itself, as well as related patents owned by Google.
Patent reform? Didn’t that law get passed already?
“Well, that’s why we passed that sweeping patent reform law last year,” some elected officials might claim. Here’s the rub, though: the most significant overhaul to the patent system is that now patents are awarded, not necessarily to the one who first invented it, but to the one who raced down to the patent office first and filed for patent protection. An excellent analysis of the recently-passed overhaul of the patent system can be found here (the law goes into effect in March 2013). This only further plays into Apple’s hands, and until public officials begin to stand up against Apple’s obvious attempts at cornering the market, other big corporations will be and have been encouraged to do the same (yes, even Google, Motorola, and Samsung are trying to use FRAND patents to get Apple and Microsoft products banned from the market).
Next year’s Olympics: the race to the patent office
image taken from the Corporate Law Report
A Tale of Two Cities and two differing patent judges
In Chicago, Judge Richard Posner made himself available to be interviewed by Dan Levine of Reuters regarding his decision to dismiss Apple’s case against Motorola (and Motorola’s counterclaims). In the interview, he questioned the need for software patents, as the entry barrier into the mobile computing market is lower than it would be for, say, pharmaceuticals. Obviously, you aren’t going to be able to rush to your garage, solder some old circuit boards together, and enter the smartphone market next week, but the costs in research and development are far lower for developing a new iOS or Android feature than they are for, say, designing the next revolution in antidepressants. Posner also questioned why an entire device needs to be banned from the market because it shares one or two features with the iPhone, and argued that banning a competing product from the market is contrary to the public interest.
Obviously, Judge Lucy Koh in San Francisco had a different opinion on the matter, as she not only ordered an injunction against the Galaxy Tab 10.1 and the Galaxy Nexus, but also denied requests for a stay in execution made by Samsung and Google. As if that weren’t enough, she also denied all 12 of Samsung’s summary judgement requests attacking the validity of Apple’s complaints and questioning Apple’s counterclaims that Samsung is using its own patents to stifle competition. This was described as a “very unusual” turn of events by Florian Mueller of FOSSpatents.
U.S. District court judges Richard Posner of Chicago and Lucy Koh of San Francisco
It should be noted that in each decision, the victorious company has its corporate headquarters in the vicinity of the city where the case was heard (Motorola’s headquarters is in Libertyville, IL near Chicago, and Apple’s headquarters is in Cupertino, CA near San Francisco). Yes, one could argue that Google’s own headquarters is in nearby Mountain View, CA, but Google wasn’t officially party to the case in San Francisco. Who says home-court advantage is just for basketball?
Libertyville, IL and Cupertino, CA – home court advantage?
As we saw with the iPad Apple likes to file exceptionally broad patents to ensure that they can legally block anyone that creates a competing product.
– Sean Kalinich, Decrypted Tech, June 8, 2012
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.
– Donovan Colbert, TechRepublic, April 27, 2010
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.
– Donovan Colbert, TechRepublic, April 27, 2010
Apple’s ability to reinvent, sand off the rough edges, and mainstream cutting-edge technology seems to consistently trump “who did it first” considerations.
– Adario Strange, PCMag.com, July 5, 2012
It’s a constant struggle for survival. As in any jungle, the animals will use all the means at their disposal, all their teeth and claws that are permitted by the ecosystem.
– Judge Richard Posner, in an interview by Dan Levine of Reuters, July 5, 2012
Samsung attacked the validity of each and every one of the intellectual property rights asserted by Apple at this stage as well as Apple’s FRAND-related antitrust claims, and failed all the way. It is very unusual for such a multi-pronged motion by a major industry player to fail entirely.
– Florian Mueller, FOSSpatents, July 1, 2012