Software patents: Removing the focus from innovation

I've long been sceptical about software patents. It's not that I don't think software engineers create innovations worthy of protection, but using copyright instead of patents did a pretty good job of protecting software IP for a long time. There are some unique inventions covered by software patents, which makes them appealing, but I've seen too many patents given to ideas (not even expressions of ideas) that seem pretty obvious.

So, when I look at the decision in the Apple-Samsung trial, I'm pretty torn. It's clear that software patents are the law of the land and, indeed, are now a part of the business process all over the world. I can see why so many people want to defend these patents. I can also see where Apple made huge innovations in mobile phones, and why it feels Android copied many of those innovations. On the other hand, there are so many little things that add up to a modern smartphone (or almost any new technical product), that sorting out all the patents and assigning value to each innovation seems like an impossible task.

In this case, Apple successfully asserted that Samsung violated three of its software patents, all of which relate to multi-touch operations in some form.

In particular, the jury ruled on specific claims in three utility patents. These were cited in claim 19 of Apple's '381 patent, which covers scrolling, scaling, and rotation and in particular the "bounce back" feature. Then there was claim 50 of the '163 patent, which covers an interface for displaying structured documents, including tap to zoom and centre. And, perhaps most importantly, claim 8 of the '915 patent on APIs for multi-touch scrolling operations, which lists zooming based on multiple input points, often referred to as "pinch-to-zoom."

Note that Apple never claims to have invented smartphones, tablets, multi-touch, or even pinch-to-zoom. Indeed, the concepts of smartphones and tablets go back to at least the 1960s. (See Star Trek for a communicator or 2001: A Space Odyssey for a device that looks a lot like an iPad).

Multi-touch also seems to go back a fair way, as Samsung pointed out at the trial, talking about the Diamond Touch interface that predates the iPhone. A 2006 TedTalk from Jeff Han addressed the same concepts as well as an early 90s Xerox video (go to 7 minutes and 30 seconds in). Keep in mind that all of these are on projected displays, not a handheld capacitive touch device such as the iPhone.

Bill Buxton of Microsoft Research suggests multi-touch goes back to the early 1980s, and was part of a group that delivered a paper on a multi-touch tablet in 1985. So of course, Apple did not claim to invent the multi-touch concept.

Instead, Apple claimed ownership of methods of implementing multi-touch in particular ways. Apple was certainly early in adopting multi-touch and in acquiring a company called FingerWorks in 2005 that had been making gesture pads and other multi-touch devices starting back in 1998. FingerWorks has a variety of multi-task and capacitive touch patents, though none referenced directly in the recent cases.

The iPhone factor

Indeed, from the day the first iPhone was released, everyone has talked about how different its multi-touch interface is and how surprisingly easy it is to use. In part, that's because Apple was very early with a capacitive touch screen, but also because of the way it implemented many of the features – things that it certainly seems were swiftly copied by other devices.

So, if we have a system that allows for software patents, then it's not surprising that Apple received them for these implementations, or that a jury would accept that they are important.

What worries me here is the sheer number of these patents. I've seen estimates suggesting that there are up to 250,000 patentable inventions inside a typical smartphone. Even if that number is wildly inflated, there are still a huge number of inventions. In this case, the jurors decided, apparently based on their own experience in such cases, that the violated patents were worth 14 per cent of Samsung's revenues on the phones found to be infringing. Now clearly different patents have different values, but if there are thousands of patents, it's easy to see how the values of these patents could get out of control.

It's also worrisome that each jurisdiction seems to have its own rulings. The Apple-Samsung case in the United States, which was held near Apple's headquarters, resulted in a victory for Apple. A similar case held in Korea, near Samsung's headquarters, yielded mixed results and small dollar values. A case between Apple and Motorola, held near Motorola's long-time headquarters, was thrown out. There are many other cases, among many combinations of mobile vendors, all over the world. It's a recipe for confusion.

Apple's major victory in this case reinforces the value of software patents, and it will undoubtedly give more incentives to companies to acquire and litigate more patents going forward. We'll certainly see many more court cases as a result. Without clear, consistent, and worldwide rulings, companies will spend more time litigating and less time innovating, and ultimately no one benefits from that.

Michael J. Miller is Chief Information Officer at Ziff Brothers Investments, a private investment firm. Mr. Miller, who was editor-in-chief at PC Magazine from 1991-2005, authors this blog for PC Magazine to share his thoughts on PC-related products. No investment advice is offered in this blog. All duties are disclaimed. Mr. Miller works separately for a private investment firm which may at any time invest in companies whose products are discussed in this blog, and no disclosure of securities transactions will be made.