Patently Silly

If you follow tech news you already know this, but if not: Apple is suing HTC (maker of various Google Android phones) for patent infringement. Twenty Patents are named in the lawsuit (Engadget has a discussion of what each means). Naturally, the blogosphere is abuzz with discussions of what this means for HTC, Apple, and Google.

In short, while HTC is the defendant, conventional wisdom states the suit is more about Google then anything else. The iPhone is the current dominant smartphone, but Google's efforts are gaining steam and may eventually unseat Apple's reigning champ. The patents cover a lot of ground, but the basic point of contention is touch based control of a phone (specifically, multitouch). Why HTC? It's a major producer of Google's Android phones, and it probably doesn't own enough patents of its own to launch a counterattack. It may be the first in a series of lawsuits, or this might be it.

In older news, Apple is also the defendant in patent lawsuits: Nokia has filed suit that the iPhone violates 10 of its own patents. Apple counter-sued in that case with its own patents, and the case has yet to be resolved.

Which brings us to the interesting use of patents in the tech industry. HTC, by failing to patent sufficient quantities of ideas, has left itself vulnerable in a bizarre game being played by major companies. Many seemingly obvious ideas have been patented (one of the patents being brought by Apple is for using gestures to unlock a phone. Another is for having a screen scroll when you wave your finger and 'bounce' when it hits the bottom. A famous software patent is Amazon's 'one click' method for being able to purchase a product from a webpage without re-entering shipping and billing information). The major technology companies have accrued impressive quantities of patents.

Some software patents are used by 'patent trolls' who aren't trying to defend any product, just extort money from other companies. The big companies tend to use there patent portfolio's not for lawsuits but as a deterrent. When Nokia sued Apple for violating its patents on crucial cellphone technology, Apple counter-sued with its own basic patents Nokia was likely to be violating. If two major companies got in a serious patent war (IBM vs. GE, or Apple vs. Microsoft), the results could be catastrophic. Huge swathes of products could be expelled from the market. It's probably impossible to have any cell phones without some cross licensing: a 'world war' of patents would eliminate entire product classes, some as fundamental as the operating system. It's generally believed that companies are too self-interested to actually let such a ominous situation arise, but to be fair a similar sentiment existed before World War I.

While patents were designed to promote innovation, they seem to be having the opposite effect in software. Hence some major efforts to reform or eliminate software patents (see in particular 'in re Bilski'). Understanding a piece of software can require expertise in the field and days of time, neither of which the average patent examiner has. Additionally, software is much closer to the realm of ideas: it's much easier to describe an idea for a program than a way of, say, fighting AIDs. Which is not to say that there isn't important research that needs to be funded in software: there is. Microsoft, to pick a specific example, has an extremely well regarded research department they pump lots of money in to. But the problems I mentioned earlier, along with the rapid pace of change inherent in technology, has created an environment of weaponized patents. Besides creating costs in fighting off patent trolls and removing useful products from the market, the threat of a patent war that takes out how product categories exists.

The problem is ultimately the one-size-fits-all nature of patents. I'm by no means opposed to patents, but the dynamics of software is totally different from the dynamics of pharmaceuticals. Whereas drugs can take hundreds of millions of dollars to develop, a software patent can be thought up in an afternoon. Whereas drugs are patented individually, software is made up of tens of thousands of algorithms working together, any one of which is subject to patent. And none of that takes in to account the speed of advance in software. If search had been patented, 2010 could be the first year we'd be able to use anything but good old Archie (sorry Google).

The problem with these articles on complex topics like patent law is that they're hard to conclude. What to say? The software industry would probably be stronger without any patents, but that's by no means a certainty. And more nuanced solutions would require additional pages to discuss. The one positive is that 20 years isn't a terribly long time (compare with copyright, which if congress continues to lengthen at the rate is has goes on forever). Yes many software patents are questionable, not to mention the patents on your genes (that's right, someone owns a couple of those), but at least in 20 years they expire and no-one can copyright them anymore. At least we'll have a free market eventually.