Apple v. Samsung and the broken patent system

Everyone has an opinion about the verdict in the Samsung-Apple case, including InfoWorld’s Galen Gruman and Robert X. Cringley. Personally, I see this case as another tale of two rich corporations that have embraced the patent regime in America, along with the legal power plays that regime now demands.

I’ve addressed the evil nature of software patents in previous posts. Most concerning in this case: How on earth did Apple get awarded these patents? They’re patents on ideas, such as gestures that give commands like “zoom,” visual norms for illustrating software status, and design ideas for rounded corners on icons and devices.

[ Also on InfoWorld: Galen Gruman contends Apple’s patent victory over Samsung is good for Android, while Robert X. Cringely tries to make sense of the verdict for consumers and corporations alike. | Track the latest trends in open source with InfoWorld’s Technology: Open Source newsletter. ]

Pinch-to-zoom is not a technology. It’s a gesture — a concept. Patents were supposed to protect instantiations of ideas, not the ideas themselves, yet these ideas have been described in such a way that the ideas themselves have become patentable. They’re obvious, at least to a generation that watched “Minority Report” and saw Tom Cruise sliding and stretching images, or viewed “Star Trek,” with its voice interaction and touch displays, or owned a Psion Series 3 PDA and its icons and graphic display.

The patent system has become impossibly complex to navigate and fails to achieve its objective. The patents Apple wielded, and the ones Samsung attempted to use for defense, are amazingly minor parts of the design of massive, complex systems of end-user software, digital communications software, radio communications software, and hardware and radio and computing equipment.

Designing a product that somehow dodges all the possible infringements of the broadly scoped patents being awarded by the U.S. Patent and Trademark Office is an advanced skill even without the knowledge and experience necessary to build the devices themselves. Rather than “promote the Progress of Science and useful Arts” as the Constitution says, the skills of talented engineers and designers are wasted in avoiding the innovations of others.

Worse, the presence of triple damages for “willful infringement” means most of the specialists I know actively avoid consulting any source of information about patents. So the complexity and the detached level of legal meta abstraction in reality frustrate innovation, stifle progress, and waste effort.

It seems likely that the law as it stands is being applied consistently — but is it still delivering the benefit the founders intended? Patents are authorized in the Constitution “for the advancement of science and the useful arts,” but their effect here is the opposite. Market competitors who build on the shared consensus of the market are prevented from doing so.

A year and a half ago, when Novell’s patent portfolio was up for sale, a consortium of companies — Microsoft, Oracle, Apple, and EMC — tried to buy the portfolio. The Department of Justice placed terms on the consortium because they found the potential uses for the portfolio were anticompetitive. This case, and the Oracle-Google case before it, demonstrates that “intellectual property” law is now primarily a game for the anticompetitive control of markets and not for the protection of innovation.

If there’s one valuable lesson to be drawn from this verdict, it’s that instead of pursuing innovation to dominate markets, companies like Apple and Samsung reach a plateau where gaming the patent system is a better way of chasing monopoly control. This case will probably echo through the halls of the courts for months or years, as both parties follow the byzantine complexity of the options available.

The one hope I have is that the Apple-Samsung case will provide yet another glaring example for legislators — to accompany the recent, abusive Oracle-Google lawsuit — that the patent system is fatally flawed when applied to software-based technologies. It needs a fundamental rethink, one that recognizes the role of individual inventors ahead of big-budget manipulators of the legal system.

This article, “Apple v. Samsung and the broken patent system,” was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.