[Adapted from a talk by Ben Bederson at the HCIL, Maryland, College Park]
The very utterance of the word patent frightens us with the sheer complexity and wordplay it can subsume us with. Here is an attempt to demystify patents and the world of legal wrangling. As the lexicon definition goes, it is “the exclusive right granted by a government to an inventor to manufacture, or sell an invention for a certain number of years”. However, over the years, as patents and workarounds have evolved, companies have gone out of their ways to exercise monopoly over innovation and prevent competition from innovating in a related area of research and development.
In the US, the International Trade Commission is the disinterested body which oversees trade and takes a final call over unfair trade practices. All patents have to go through a process of prosecution before being approved and pursued in a commercial setting. Patents are also governed by the purview of jurisdiction. In such a scenario, what may apply in The United States of America need not hold true in the United Kingdom.
With that being said, patents have ‘changed’ to become entities which prevent other people from ‘doing’. In other words, patents have regressed from being a mechanism to safeguard innovation to an instrument to cartel against opposition. As far as patents in the world of computers go, there are only hardware patents. There is no such thing as a ‘software patent’. Additional cause for concern is the fact that the boundaries between software and hardware are diminishing to a great extent with pervasive and ubiquitous computing.
For a piece of innovation to be patented, it has to fulfill three requirements. To begin with, the notion put forth should be novel. Furthermore, the idea has to be non-obvious. The non-obvious could also mean combining from obvious sources of past work to arrive at a new ‘non-obvious’ interpretation. Such work is always fraught with the risk of calling it into question. Did previous works serve as sources of inspiration or were these sources shamelessly duplicated in the new design could become the focal point of many a legal debate. Last but not the least, the patent has to serve a use which may sound inane, but is a requirement nonetheless.
Companies also create a set of claims for their respective products which are in turn more descriptive and exhaustive. These claims are protected by law and present a set of facts which accurately depict and disclose the working of the product even at its grass root level. They serve as a testament to the veracity of innovation achieved as claimed by such innovators. The claims can either be independent or non independent. Independent claims tend to be broader as they are mostly laid down by pioneers in the respective fields of research and are efforts based on little or no pre-existing work. Non-independent claims are based on previous work and more likely to be performance or process improvements and tend to be narrower.
In the event of a legal tussle between organizations, it can become extremely difficult to qualify the exact reason for the fight. Compounding the situation further is the intricate procedure and multiple hearings the legal case has to go through before a final decision is arrived at. The prosecutor submits an infringement report to which the defendant retorts by filing a rebuttal report. The two parties hire lawyers and consultants to defend their respective stands. There are also fact witnesses who could provide defining information which could tilt the scales of the verdict towards a party.
In the now famous case of Apple vs. Samsung, there has been continuous warring between both the sides with each accusing the other of infringing their respective patents. Nonetheless, an interesting point to note is how both these companies have been ‘acquiring’ patents to safeguard their stockpile of innovations. Apple sued Samsung for copying its user interface, the slide to unlock, bounce back effect and employing rounded edges. As stated earlier, there is no such thing as a software patent and Apple suing Samsung who purportedly did a software rip-off does not sound a cogent case for argument. Even if it were the case, Samsung’s ‘adoption’ of such user interface in the Android platform could be argued to be non-obvious with no previous work in that direction. The issue of patenting rounded edges is left to a question of acceptance and personal judgment.
On the other hand, Apple has adopted Notifications, cloud services and the now standard ‘pinch and zoom’ feature from previous works. The latest version of the iPhone has an increased screen size and uses the LTE network for higher bandwidth support on its data network. Samsung has been pushing the boundaries of the size of a mobile device and it can be argued that the increase in iPhone’s size had to partly do with increase in size of Samsung phones. But the very concept of sizes and form factors of devices being patented is limiting. Samsung and HTC have sued Apple over the incorporation of LTE with having infringed their respective patents. A point to note is that the iPhone makers have fabricated voice and data technologies on a single chip using LTE, an attempt not made thus far, which surely makes it novel and non- obvious.
There is a grave need for a greater sense to prevail and companies need to be willing to appreciate and accommodate legal innovation from their competitors. With many technology companies having to coexist in a connected ecosystem, it would prove to be sane to look at competitors as potential business partners. Gmail on Apple and the xBox app on Android are some examples of such existing approaches. Building healthier relationships, maintaining integrity and being respectful of each other’s work would go a long way in fostering an environment congenial for innovation.