iPatents?

by Tim Lee on January 11, 2007 · Comments

Over at the ACT blog, Mark Blafkin pinpoints what makes the iPhone really great: 200 patents!

The Apple iPhone is the result of tens of millions of dollars in research and development by some of the smartest minds in computing. The investment necessary to develop a radically new interface like Multi-touch requires that Apple have a way to protect that investment. If Nokia, Sony, and Motorola could all simply copy it in their new phones, why would Apple even bother? Besides, I’m sure Apple has had enough of playing R&D Lab for the rest of the industry.

That’s why Mr. Jobs declared, “Boy, have we patented it!” There are a lot of bad software patents out there, but devices like the iPhone make us all realize why we can’t throw the baby out with the bathwater. There are some things so cool, so innovative, they deserve patent protection.

I have yet to see a list of the patents Apple requested, and Blafkin doesn’t provide such a list, so it’s hard to judge how much of them are baby and how much are bathwater. But Blafkin’s supposedly rhetorical questions aren’t actually that hard to answer. Why would Apple bother to develop something like Multitouch without the benefit of patent protection? Quite obviously, it’s because if the product is as good as Uncle Steve’s presentation made it look, Apple is going to make a ton of money on it. And they would be able to make a ton of money even if they hadn’t applied for a single patent.


Blafkin seems to believe that Nokia, Sony, and Motorola have a magical technology copying machine that can instantaneously duplicate Apple’s innovations. But cloning a breakthrough new user interface is actually quite difficult. Just ask Microsoft, which spent six years trying to clone the Macintosh interface in the late 1980s. Microsoft didn’t succeed in matching the functionality of the first Macs until at least Windows 3 in 1990, and arguably not until Windows 95. In the meantime, Apple had ample opportunities to reap big profits from its innovation.

Even if Nokia does a lot better than Microsoft and manages to clone the iPhone interface in, say, 2 years, that still means that they’ll be perpetually 2 years behind. Why would consumers buy a knockoff of the 2007 iPhone from Nokia when they can buy the 2009 version from Apple?

Blafkin’s argument is also at odds with history. The software industry thrived for decades before the Federal Circuit opened the door to software patents in the 1990s. So his statement that investment requires “a way to protect that investment” is simply false. In the 1980s, companies did, in fact, spend millions of dollars developing innovative software without any expectation of receiving patent protection. And many of them succeeded in making large profits without the benefit of the patent system. Neither history nor economic theory gives us any reason to think that software patents are an essential precondition for products like the iPhone.

Comments Posted in: Patents

  • Late last night CNBC reported that Cisco is Suing Applie over the name "iPhone". This morning, the New York Times (1/11/2006) is reporting: "Cisco, Claiming Ownership of ââ?¬Ë?iPhone,' Sues Apple"

    John Markoff of the Times writes: "And now, iSue? ... Maybe Steven P. Jobs should have named his new gadget the Apple Phone instead of the iPhone. Or maybe the real winners will be the intellectual property lawyers."

    http://www.nytimes.com/2007/01/11/technology/11...
    -------------------------------------------------
    The Times article also had a link to the FindLaw writeup at: http://news.findlaw.com/nytimes/docs/apple/cisc...
    ---------------------------------------------------

    Whenever a new product is introduced, a flurry of lawsuits seems to follow. Many of these lawsuits are between established companies squabbling over "turf". Everything we do is interconnected and built on the prior work of others. Lawsuits, such as this one, are an economic drag and stifle innovation.
  • On Cisco suing Apple, Cnet has a good article.
    http://news.com.com/Cisco+sues+Apple+over+use+o...
  • To be fair, Tim, until Apple v. Microsoft, the industry mostly assumed that copyright was sufficient to protect investment. So it isn't like the industry went from no protection to patent protection- it went from (assumed) copyright protection to patent protection.

    That said, it is clear that while Apple thought they were protected legally, they sat on their asses and failed to improve their product. It was only after their government-granted monopoly expired that competition forced them to became the creative dynamo they are today. The most creative companies (see Apple, Nintendo in particular) are those that think that if they don't stay aggressively, constantly creative, they'll go under. When you get a monopoly (government-granted, or network-effects granted (MS, or apple in the ipod case- ipod hasn't really innovated in years) you get lazy and stop delivering superior benefits to consumers.
  • I'm not old enough to remember the look and feel lawsuits in any detail. Do you know what, exactly, Apple claimed its copyrights covered? Did they think they were the only ones that could build a GUI? Or that they owned icons and menus?

    Also, I don't think I agree with the assessment that iPod hasn't innovated in years. The basic functionality hasn't changed much, but playing music isn't that hard. But I think the speed with which they've made iPods smaller, cheaper, and more featureful is pretty remarkable, even compared with the general high pace of change in high tech. I mean, compare the original iPod to the iPod Nano. The Nano is half the cost, 1/4 the weight, has a higher-resolution color screen, and gets 40% more battery life. And at the time of introduction, the 4 GB Nano was $150 cheaper than the original 5 GB iPod was 4 years earlier.

    Now obviously, a lot of that is just the relentless march of technology outside of Apple, but I still think it's pretty remarkable. And the Shuffle is genuinely remarkable for packing a lot of functionality into a tiny, affordable package.
  • Doug Lay
    I'm sure a number of the patents in the iPhone aren't software patents.
  • Doug, that's probably true. And some of Apple's iPhone patents may very well be legitimate. But the mere fact that the iPhone is cool doesn't prove it. And I don't think it's at all obvious that the iPhone wouldn't exist without the patent system.
  • Well, Tim, you patent *after* you invent, so its not quite right to say that an inventor would have produced the same work without patent protection. A more sound approach would be to ask whether an inventor would pursue an invention without the potential future availability of enforcing a patent for the invention.

    Whats up with this Tim: *Why would Apple bother to develop something like Multitouch without the benefit of patent protection? Quite obviously, it's because if the product is as good as Uncle Steve's presentation made it look, Apple is going to make a ton of money on it.*

    What does this mean?! Are you saying that inventors who create good products don't need to patent? You're conflating incentives and market viability.

    Also, you continue to have a weird notion of copying and derivative works under patent doctrine. Nobody has to copy Apple's work for its patents to give it the exclusivity conducive to commercializing its invention. Your linquistics get in your way...

    Finally, your point about the history of the software industry is weird. Luis calls it out, that firms worked under the assumption that copyrights would be adequate, but soon began leveraging patents as complements and substitutes for copyrights- even before software patents were per se legal. Check out some articles by Stuart Graham at GA Tech and Josh Lerner of Harvard, who have written on this (I'm not name dropping, if citing can be considered that:) but just want to point you to a resource).
  • Are you saying that inventors who create good products don't need to patent?

    At least with respect to software, that's exactly what I'm saying.
  • Can you expand. Are you implying that patents and bad prodcuts somehow correlate?
  • Because it takes a non-trivial amount of time to clone a software product, and that gives the original inventor plenty of time to recoup his investment.
  • Now, you just get back to your conception of copying/derivatives in patents. That pertains to copyrights Tim... not patents.

    Lead time is an advantage that can be nearly as valuable as patents (actually, with the USPTO these days, lead time and trade secrecy may be more important than ever). Yet, it does not provide the same kind of formal protection necessary to fend off misappropriation of investment. Nor does lead time facilitate disclosure and the open model of innovation as much as patents through licensing.
  • It does not provide the same kind of formal protection necessary to fend off misappropriation of investment.

    You're begging the question. The whole issue is whether "formal protection" is "necessary" for businesses to recoup their investments. I say it's not, for reasons I've laid out in great detail in previous posts. If "lead time is an advantage that can be nearly as valuable as patents," isn't it possible that patents aren't needed at all?
  • Several questions Tim:

    *is formal protection preferable to non-formal protection (such as community enforcement)?
    *is investment necessary for innovation?

    All of the reasons you laid out above I addressed above, but again you dodged the issues.

    ***If "lead time is an advantage that can be nearly as valuable as patents," isn't it possible that patents aren't needed at all?***

    No.
  • Tim, thanks for taking the time to read my post, I just wish you had taken a little time read some history before you responded. Your arguments are part of the mythology of your Free Software, anti-patent crowd, so I guess I'll forgive you for not taking the time to question the faith. To help in your deprogramming, however, I offer a few bits of history at the ACT Blog from someone who was actually alive and conscious during the 1980s.
  • Tim, your knowledge of history is severely flawed.

    The truth is that both Apple and Microsoft stole overlapping windows from Xerox, who had used it on a variety of experimental workstations such as the Alto before productizing it on the Star and the 1100. There was no question of Apple patenting this invention because it was Xerox's from the beginning. Steve jobs was inspired to build the Mac by seeing a demo at Xerox PARC.

    Early versions of MS Windows had tiled windows because they were afraid of impinging on Xerox's patents for overlapping windows, but they worked out some kind of deal as I recall.

    Both Apple and Microsoft hired people from Xerox to do their windowing: MS got Charles Simonyi, the architect of Word and later of Windows, and Apple got Larry Tessler.

    I know you love your Apples as much as you love your Totally, Like, Free Software, but pushing the myth that Apple invented the overlapping windows/bit map display/mouse UI makes you look, well, foolish.

    I'd like to see the patents Apple has filed for this silly little phone. Do they think they invented the touch screen, the display of icons on touch screen, or the use of a touch screen to mimic a keyboard? It wouldn't surprise me if they did, but Apple's innovations are more likely limited to methods of back-dating stock options.
  • Richard,

    I appreciate the history lesson, but I'm not sure how it contradicts my post. I didn't say Apple invented anything. I just said that it took Microsoft 6-11 years to duplicate what Apple built, thereby giving Apple a wide window of opportunity in which to turn a profit. Which features are original to Apple and which were copied from Xerox is really beside the point. The point is that innovators have ample opportunity to profit from their inventions without the aid of software patents.
  • Right, you didn't call Apple an "inventor," you called it "the innovator" and the target of Microsoft's efforts at "duplication." These are distinctions without differences, Tim.

    It's also amusing that you continue to stress the distinction between "software patents" and (presumbly) real ones, but the examples you're giving are actually hardware-dependent examples of devices, processes, and machines consistent with historical examples of patentable inventions.

    The GUI isn't something that can be done strictly in software, you see.
  • I don't understand why you're nitpicking about this. Again, the Apple/Microsoft thing was an example to illustrate the fact that innovations are not easy to duplicate. It doesn't matter whom Microsoft was copying; the point is it took them more than a decade to do it.
  • You say Apple made lots of money from the Mac before MS was able to copy it so patents are no big deal, innovation protects itself.

    But if you asked how much money Xerox made from overlapping windows before Apple copied them you'd come to a very different conclusion.

    Genuine pioneering work is rare, so if you want to argue that it doesn't need protection can you at least use some legitimate examples?

    That's all I'm asking.
  • Tim, can you address my points above?

    Again, when you say *duplicate* I get the feeling you're talking about copyright. The term *imitate* may be more applicable.
  • jim
    "until Apple v. Microsoft, the industry mostly assumed that copyright was sufficient to protect investment."

    That's not true at all -- at least if you are referring to user interface copyright. Apple was the first company I remember asserting this right, only a minority of people expected them to win the suit, and they lost it. The key reason for this is the law: which is very clear that copyright, while it applies to documents, does not apply to general expressions of UI design principles.

    It is true that copyright was widely asserted -- to protect literal code and the printed documentation that accompanied it. For "intellectual property" protection of software, companies used the only worthwhile protection that has ever existed: trade secret protection.
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