Apple’s lawsuit against HTC is not the first example of patents having a huge influence on how we are allowed to design user interfaces. If you’ve ever played a videogame and wondered why the game didn’t give you anything to do while a new level was loading, Namco’s patent is the answer. If you’ve ever bought something from an online store and wondered why you couldn’t just click on «Buy» and receive the item a few days later, Amazon’s patent is the answer (and yes, Apple has licensed that patent for the iTunes store). There are more examples on Wikipedia.
Marco Arment has an insightful take on the situation, and John Gruber has a pretty good lineup of the current patent situation, but I wanted to add two points that I think deserve more attention.
Gruber mentions large corporations and patent trolls in his essay. But small firms (with one to nineteen employees) make up the majority of all corporations.
While large corporations can afford to get defensive patent portfolios,1 small corporations often can’t. It’s not that they couldn’t come up with ideas to patent. Most small companies could easily come up with dozens or hundreds of patentable ideas within days. But actually getting patents is expensive. Not just in terms of money (including paying lawyers), but also in terms of time. If employees are writing patents, they’re not improving the company’s products.
So most small to medium companies can’t afford to build up defensive patent portfolios.2 That means they can’t enter into cross-licensing agreements with larger companies. And since it is virtually impossible to not violate any of the patents held by large companies like IBM, Apple, or Microsoft, this makes small companies - and open source projects - vulnerable to patent litigation. As Marco Arment writes:
As a working software developer, the thought of accidentally and unknowingly stumbling into someone’s patent is terrifying.
And yet it is impossible to avoid doing exactly that.
Instead of protecting small companies and projects, the patent system is giving large companies a tool they can use to go after them. This is the reality of running a small software company: There is nothing you can do to defend yourself.
Patents Are Supposed to Be a Trade-Off
An inventor comes up with a new invention. The state then offers to protect this invention for a limited period of time. However, in exchange for this protection, the inventor writes up a detailed description explaining how the invention works, and agrees to publish this explanation. The goal is to get new inventions published, instead of kept secret.
In other words, the inventor «pays» for the protection by giving society (and his competition) access to the invention.
This trade-off does not apply to many software patents. I only need to spend five minutes on Amazon’s site to figure out how one-click shopping works. There is nothing useful I can learn from reading the patent. Likewise, I only need to turn on an iPhone once to figure out how to unlock it. This means that Amazon or Apple don’t give up anything when they patent these ideas. There is no trade-off involved; the state grants these patents «for free», because nobody gains anything from the publication of these ideas. They are already public.
Hence, most software patents are a rather one-sided affair. The companies get protection for their ideas, but they don’t have to give up anything in return.
Although if the number of patent lawsuits in the mobile phone industry is any indication, that whole «defensive patent portfolio» idea doesn’t seem to be working particularly well anymore, either.
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