Apple v. Samsung and the broken patent system

Intellectual property law has become a game for anticompetitive control of markets -- not a protection for innovation

Everyone has an opinion about the verdict in the Samsung-Apple case, including InfoWorld's Galen Gruman and Robert X. Cringley. Personally, I see this case as another tale of two rich corporations that have embraced the patent regime in America, along with the legal power plays that regime now demands.

I've addressed the evil nature of software patents in previous posts. Most concerning in this case: How on earth did Apple get awarded these patents? They're patents on ideas, such as gestures that give commands like "zoom," visual norms for illustrating software status, and design ideas for rounded corners on icons and devices.

[ Also on InfoWorld: Galen Gruman contends Apple's patent victory over Samsung is good for Android, while Robert X. Cringely tries to make sense of the verdict for consumers and corporations alike. | Track the latest trends in open source with InfoWorld's Technology: Open Source newsletter. ]

Pinch-to-zoom is not a technology. It's a gesture -- a concept. Patents were supposed to protect instantiations of ideas, not the ideas themselves, yet these ideas have been described in such a way that the ideas themselves have become patentable. They're obvious, at least to a generation that watched "Minority Report" and saw Tom Cruise sliding and stretching images, or viewed "Star Trek," with its voice interaction and touch displays, or owned a Psion Series 3 PDA and its icons and graphic display.

The patent system has become impossibly complex to navigate and fails to achieve its objective. The patents Apple wielded, and the ones Samsung attempted to use for defense, are amazingly minor parts of the design of massive, complex systems of end-user software, digital communications software, radio communications software, and hardware and radio and computing equipment.

Designing a product that somehow dodges all the possible infringements of the broadly scoped patents being awarded by the U.S. Patent and Trademark Office is an advanced skill even without the knowledge and experience necessary to build the devices themselves. Rather than "promote the Progress of Science and useful Arts" as the Constitution says, the skills of talented engineers and designers are wasted in avoiding the innovations of others.

Worse, the presence of triple damages for "willful infringement" means most of the specialists I know actively avoid consulting any source of information about patents. So the complexity and the detached level of legal meta abstraction in reality frustrate innovation, stifle progress, and waste effort.

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