iPatents?

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.

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