Last week a U.S. jury sided with Apple in its patent case against Samsung and awarded Apple $1.05 billion. Robin Feldman, an intellectual property law professor at the University of California Hastings Law School, said this just before the verdict:
The trial is evidence of a patent system that is out of control. No matter what happens in this trial, I think people will need to step back and ask whether we've gone too far in the intellectual property system.
As a scholar of creativity and innovation, I believe it's too easy to get a patent and too easy to defend a patent. This blocks innovation because patent holders are allowed to prevent others from building on and improving their patents. That's a problem because 'innovation is incremental; every new step forward always builds on a long chain of prior innovations.' If any one link in the chain is allowed to block all future enhancements, then innovation stops.
I've had iPhones for about three years and I love them. But my first iPhone replaced my Palm Treo 650, and I loved my Treo, too. My Treo did just about everything the iPhone did, so I never really thought the iPhone was particularly innovative. If you never had a Treo, check out this list of iPhone/Treo features:
See what I mean? Really, the only truly new thing in my first iPhone was the WiFi ability and the GPS feature. And the iPhone wasn't the first phone to have WiFi, and it wasn't the first portable GPS device either. I agree with this Google spokesperson, responding to the jury verdict:
The mobile industry is moving fast and all players, including newcomers, are building upon ideas that have been around for decades.
Samsung wanted to show jurors evidence that the iPhone was inspired by older products, including those by Sony, but U.S. District Judge Lucy Koh refused to allow the evidence. (For a technical reason: Samsung failed to disclose these examples of prior art during the fact discovery period. I wonder if the verdict might have been different if the jury had seen this evidence?)
Let's look closely at the six patents Samsung was judged to have infringed. You can find an interactive graphic with the following information on The Wall Street Journal website here and a detailed summary of the six patents here.
The jury threw out the seventh Apple patent infringement claim: Apple had a patent for the iPad shape, a rectangular shape with rounded corners, and the jury decided that no company could patent a geometric shape. (A victory for common sense.)
Take a look at the detailed, side-by-side comparisons of the iPhone and the Samsung products judged to infringe, on all six patents, at this website. Yes, I have to agree, those Samsung phones look a lot like those iPhones. But come on, they look the same because they're both black rectangles with rounded edges!
After I spent some time "under the hood" of the details, I'm left with a couple of reactions. First: Apple spent a lot of money to apply for all of those patents over the years. I think it's scary when any company really thinks they should have the right to patent a rectangle with rounded corners. Or the right to patent the ability to scroll a screen using your finger. Remember my old Palm Treo? Yes, I scrolled it with a stylus. So changing it from a stylus to a finger entitles you to a patent?
Second: It's scary that a jury voted against Samsung. I don't blame the jury, they were simply following the court's instructions and the law as it currently stands. The problem is with the law. So now every company is going to be filing patents for triangles, parallelograms, three-finger touches, scrolling with two fingers moves slower than scrolling with one, you name it. Come to think of it, I'll bet most of those ideas already are patented. No doubt some company already has a patent for a trapezoidal phone shape. Coming soon to a court near you, and you heard it here first!
Whatever happened to the "nonobviousness" doctrine? Under patent law, an idea is supposed to be nonobvious before a patent can be valid.
Apple's official statement says that "stealing isn't right." That is embarrassingly simplistic. I prefer Samsung's official statement:
Today's verdict should not be viewed as a win for Apple, but as a loss for the American consumer. It will lead to fewer choices, less innovation, and potentially higher prices. It is unfortunate that patent law can be manipulated to give one company a monopoly over rectangles with rounded corners, or technology that is being improved every day by Samsung and other companies.
There will be one or two more rounds in this fight: Samsung will appeal to the U.S. Court of Appeals for the Federal Circuit, and then possibly to the Supreme Court. Stay tuned.