Have we lost sight of the original purpose of patents? The Samsung/Apple patent fight has me shaking my head. An issue that gets a lot of play in the press is Apple’s patent that essentially covers putting round corners on things, and Samsung’s phones have rounded corners! Should we protect rounded corners? Should Samsung pay a licensing fee to use them? What is the purpose of a patent? The original wording, “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…” (Article 1, Section 8, US Constitution), says it all, but intelligent people still fight over the meaning.
If the implementation of our patent laws does not encourage innovation, then it is not doing the job the founders wanted. An important aspect of the patent system is that only things not immediately obvious to one skilled in the art are patentable. We can well ask who discovered the value of rounded corners on cellphones. Be assured that some very bright and highly paid Apple lawyers have some good reasons why rounded corners are not obvious or common practice, particularly on cellphones. Since I am not burdened with a financial interest in Samsung or Apple, and since I am not trained in the niceties of law, the idea of owning rounded corners seems odd — really odd. However, if awarding such ownership helps to promote the sciences, then I am all for it. Maybe someone can explain how we all benefit from apparently frivolous patents like this, but it beats me. The purpose of the patent system is to benefit everyone by encouraging innovation. There is a delicate line crossed when innovation is stymied by gaming the system, and Apple certainly did not invent gaming the system.
To keep the record straight, I hold several patents and have had to defend them in court. So do not think that I am opposed to protecting intellectual property.
Many times when producing a new product, my small company would be stressed with doing the research to see if we were violating some obscure patent. The way the current system has evolved, a small business is at a disadvantage both because of the cost of filing for patents and the cost of making sure no one else’s patents are being violated. That is before one gets into the cost of defending patents. From a practical point of view, the cost of defending a patent is more than a small company can afford, so selling out to a larger company is often the only reasonable alternative. Occasionally a small guy can win as when Microsoft finally gave up and negotiated to license the technology to compress hard drives after an expensive fight. My company could not have financed that fight. We would have given in for whatever pittance the big guy would throw our way.
A company’s business can be protected in other ways. There are always trade secrets. These can be recipes such as the formula for Coke, or techniques such as how to layer a painting to make it glow. Trade secrets are kept confidential, but if someone else figures out the secret, it can be used without permission (lots of caveats here — I am not a lawyer). But to patent something, the inventor must describe it in sufficient detail so that “one skilled in the art” could replicate the invention. This description is then made public. In return for the public disclosure, the inventor gets exclusive use for a period of time. In this way, others can learn from the invention and thereby expand the art while giving the inventor a reward for being first. The advantage of having rounded corners would not make a good trade secret since, by their nature, the corners are visible. The best protection would be a patent, assuming it is patentable, which seems to be the case.
Not so fast! Many times, potential infringers have gone to court and successfully argued that the awarding of a patent to a competitor was invalid. The reasons for throwing out a patent are many. A common method is to show that the invention had been in use before the filing. Another method would be to show errors in the examiner’s analysis. Specialized attorneys make lots of money doing this.
I believe the current system would benefit if fewer patents were granted, and those that were granted were definitely in the realm of rewarding innovative progress. Further, and more controversial, I believe the length of patent protection should be varied depending on the rapidity of changes in the field. Currently, an inventor who jumps through all the right hoops is guaranteed 17 years of protection. Where did that 17-year duration come from? More important, when was that standard set? It does not seem to make sense now. On the other hand, is there a single time period that makes sense for all types of inventions? I doubt it.
Given that the current system will not be changed drastically in the near term, what is the likely outcome for the Samsung/Apple dustup? Simple: They will posture and fret and finally sit down and negotiate a mutual licensing agreement that gives each access to the things they are already doing. Neither would benefit from forcing a long court battle. After all, this is not a matter of right and wrong. It is just business, and both companies are using all the tools they can get their hands on to increase their own profits. That is legal, and maybe moral, but to my mind, it is a long way from the intent of Article 1, Section 8 of the Constitution.
Image of Squirrel Machine from The Project Gutenberg E-book of The Invention of the Sewing Machine by Grace Rogers Cooper