Never Bring a Knife to a Gunfight

by on June 7, 2006 · 22 comments

Via Techdirt, here’s another example of a pointless software patent battle. Creative sued Apple claiming that the iPod violated its patent on the concept of organizing music hierarchically (as if no one had thought of that before). Apple returned fire by claiming that Creative had violated four user-interface patents, and last week they filed a second suit alleging three more infringements of its patents.

What I want to know is: how do defenders of software patents explain Apple’s actions? After all, if those seven patents are valid, that means that Creative has been “stealing” Apple’s intellectual property in seven separate respects. There’s no doubt that if Creative had been violating Apple’s copyrights, say by using bootlegged copies of iPod software in their products, Apple would have wasted no time in suing them. Yet faced with an analogous situation with software patents, Apple has simply sat on its intellectual property.

Here’s my theory: software patents are little more than legal harassment devices. They’re typically so broad that any given product is covered by dozens of them, and so vague that it’s impossible to be sure which products are covered by any given patent. Large companies know that they’re violating dozens of their competitors’ patents, and that their competitors are violating dozens of theirs. They don’t sue because they understand that the result would be a zero-sum legal quagmire that could drown them both in legal fees.

Mike Masnick’s analogy for this is perfect: nuclear stockpiling. Everyone wants a big patent portfolio to use as ammunition in a possible patent war, but they understand the consequences of starting such a war with another big company would be suicidal for both parties. Creative launched a lone nuclear warhead at Apple; it’s about to discover just how painful a full-blown nuclear exchange can be.

  • daw

    Also (and the nuclear analogy is also apropos here) the big boys dont want simply to abolish software patents altogether, since they basically present huge barriers to entry that can be used against smaller upstart competitors. So it’s only a zero-sum legal quagmire between the superpowers, but they can jointly maintain the status quo by threatening newcomers.

    On the other hand, microsoft and the others are afraid of these productless patent holding companies (sort of like stateless nuclear terrorists) that can dish out lawsuits while having no products of their own liable to countersuit.

  • http://www.techliberation.com/ Tim

    daw: I’m not so sure. Most of the software patent lawsuits I’m familiar with are little guys suing the big boys. Perhaps it happens in the opposite direction, but if so I haven’t seen examples. I can think of two reasons for this. First, startups, by definition, don’t have a lot of money, so it might not be worth the legal expense. And secondly, such a lawsuit would generate a tremendous amount of ill will within Silicon Valley, and a good reputation within the geek community might be more valuable to them than stomping one competitor, which most likely will end up out of business anyway.

    On the other hand, the existence of their stockpiles does seem to explain their decision to focus on narrow anti-troll legislation rather than a broader curtailment of software patents in general.

  • geoff

    These sorts of issues may be data points along the way to collecting evidence that software patents are more costly than beneficial, but the existence of challenges like Apple’s hardly leads to your conclusion that software patents are, well, patently ridiculous. The appropriate question is, if these sorts of behavior are costly (and it is not at all clear that they are — after all, as you note, most often we’re in a world of detente. The “cost” then is application, processing, and some deterrence (not zero, of course), but the benefit might be the enabling of substantial innovation and, more importantly, profitable exploitation of innovation) — anyway, as I was saying, the appropriate question is, if these sorts of behavior are costly, is the cost worth the benefit? Your theory is that “software patents are little more than legal harrassment devices,” but where’s the evidence for that? Sure, sometimes, ex post, they are used to harrass. But there is also, of course, some evidence that software patents contribute to innovation (although the evidence is weak (on both sides) and more empirics are needed), and these “legal harrassments” are surely sometimes not mere harrassment but actual enforcement of actual, valuable and worthwhile patents. As to the question about why Apple might sit on its IPRs until sued, I’m sure you can imagine that the costs of suit might, in particular cases, outweigh the benefits — particularly where it is, again as you suggest, perhaps important to establish a reputaiton for patent enforcement following a tit-for-tat strategy (but no more — no preemptive enforcement). In the end, this is simply woefully insufficient evidence to condemn software patents outright.

  • http://www.techliberation.com/ Tim

    Obviously, this example by itself is insufficient to prove that software patents are bad. But I’ve written about a large number of non-meritorious patent lawsuits, so this isn’t an isolated case. Techdirt has even more examples.

    You say that there is “some evidence that software patents contribute to innovation.” Could you please elaborate? I’ve been following this issue pretty closely for a couple of years, and I have yet to see an example of a meritorious software patent.

  • Brian Moore

    Compounding the nuclear analogy, many large companies also have “war games” style, independent entities controlling their patent arsenal. I don’t think Apple’s CEO says “today we shall attack company X.” The IP defense team of the company operates relatively independently, because they all got instructed in patent law class about how you have to aggressively defend your turf. They pick out targets and assess threats.

    When anyone asks them, they just say “look, we’re the experts here — do you want to be defending this patent in court 5 years from now and have the judge ask why you didn’t aggressively defend it then?”

  • daw

    Also (and the nuclear analogy is also apropos here) the big boys dont want simply to abolish software patents altogether, since they basically present huge barriers to entry that can be used against smaller upstart competitors. So it’s only a zero-sum legal quagmire between the superpowers, but they can jointly maintain the status quo by threatening newcomers.

    On the other hand, microsoft and the others are afraid of these productless patent holding companies (sort of like stateless nuclear terrorists) that can dish out lawsuits while having no products of their own liable to countersuit.

  • http://www.techliberation.com/ Tim

    daw: I’m not so sure. Most of the software patent lawsuits I’m familiar with are little guys suing the big boys. Perhaps it happens in the opposite direction, but if so I haven’t seen examples. I can think of two reasons for this. First, startups, by definition, don’t have a lot of money, so it might not be worth the legal expense. And secondly, such a lawsuit would generate a tremendous amount of ill will within Silicon Valley, and a good reputation within the geek community might be more valuable to them than stomping one competitor, which most likely will end up out of business anyway.

    On the other hand, the existence of their stockpiles does seem to explain their decision to focus on narrow anti-troll legislation rather than a broader curtailment of software patents in general.

  • geoff

    These sorts of issues may be data points along the way to collecting evidence that software patents are more costly than beneficial, but the existence of challenges like Apple’s hardly leads to your conclusion that software patents are, well, patently ridiculous. The appropriate question is, if these sorts of behavior are costly (and it is not at all clear that they are — after all, as you note, most often we’re in a world of detente. The “cost” then is application, processing, and some deterrence (not zero, of course), but the benefit might be the enabling of substantial innovation and, more importantly, profitable exploitation of innovation) — anyway, as I was saying, the appropriate question is, if these sorts of behavior are costly, is the cost worth the benefit? Your theory is that “software patents are little more than legal harrassment devices,” but where’s the evidence for that? Sure, sometimes, ex post, they are used to harrass. But there is also, of course, some evidence that software patents contribute to innovation (although the evidence is weak (on both sides) and more empirics are needed), and these “legal harrassments” are surely sometimes not mere harrassment but actual enforcement of actual, valuable and worthwhile patents. As to the question about why Apple might sit on its IPRs until sued, I’m sure you can imagine that the costs of suit might, in particular cases, outweigh the benefits — particularly where it is, again as you suggest, perhaps important to establish a reputaiton for patent enforcement following a tit-for-tat strategy (but no more — no preemptive enforcement). In the end, this is simply woefully insufficient evidence to condemn software patents outright.

  • http://www.techliberation.com/ Tim

    Obviously, this example by itself is insufficient to prove that software patents are bad. But I’ve written about a large number of non-meritorious patent lawsuits, so this isn’t an isolated case. Techdirt has even more examples.

    You say that there is “some evidence that software patents contribute to innovation.” Could you please elaborate? I’ve been following this issue pretty closely for a couple of years, and I have yet to see an example of a meritorious software patent.

  • Brian Moore

    Compounding the nuclear analogy, many large companies also have “war games” style, independent entities controlling their patent arsenal. I don’t think Apple’s CEO says “today we shall attack company X.” The IP defense team of the company operates relatively independently, because they all got instructed in patent law class about how you have to aggressively defend your turf. They pick out targets and assess threats.

    When anyone asks them, they just say “look, we’re the experts here — do you want to be defending this patent in court 5 years from now and have the judge ask why you didn’t aggressively defend it then?”

  • Steve R.

    We need to redefine what can be patented and for how long. Clearly, the patent system is “broken”. The Electronic Frontier Foundation (http://www.eff.org/patent/) has a nice webpage on this issue.

  • http://www2.blogger.com/profile/14380731108416527657 Steve R.

    We need to redefine what can be patented and for how long. Clearly, the patent system is “broken”. The Electronic Frontier Foundation (http://www.eff.org/patent/) has a nice webpage on this issue.

  • Consumatopia

    If patents were useful, Apple would employ preemptive enforcement. Period. By only using tit-for-tat, they reveal that, to them, in this particular area of software development, they would be better off if there were no patents involved.

    Every instance of tit-for-tat behavior–even when the game is in a detente state (in fact especially then: “I won’t play this game if you don’t play”) is evidence that the ideal state for the players would be if the game simply didn’t exist.

    Thus the “no patents” side of the argument actually has a great deal of datapoints on their side.

  • Consumatopia

    If patents were useful, Apple would employ preemptive enforcement. Period. By only using tit-for-tat, they reveal that, to them, in this particular area of software development, they would be better off if there were no patents involved.

    Every instance of tit-for-tat behavior–even when the game is in a detente state (in fact especially then: “I won’t play this game if you don’t play”) is evidence that the ideal state for the players would be if the game simply didn’t exist.

    Thus the “no patents” side of the argument actually has a great deal of datapoints on their side.

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