It seems likely that the law as it stands is being applied consistently -- but is it still delivering the benefit the founders intended? Patents are authorized in the Constitution "for the advancement of science and the useful arts," but their effect here is the opposite. Market competitors who build on the shared consensus of the market are prevented from doing so.
A year and a half ago, when Novell's patent portfolio was up for sale, a consortium of companies -- Microsoft, Oracle, Apple, and EMC -- tried to buy the portfolio. The Department of Justice placed terms on the consortium because they found the potential uses for the portfolio were anticompetitive. This case, and the Oracle-Google case before it, demonstrates that "intellectual property" law is now primarily a game for the anticompetitive control of markets and not for the protection of innovation.
If there's one valuable lesson to be drawn from this verdict, it's that instead of pursuing innovation to dominate markets, companies like Apple and Samsung reach a plateau where gaming the patent system is a better way of chasing monopoly control. This case will probably echo through the halls of the courts for months or years, as both parties follow the byzantine complexity of the options available.
The one hope I have is that the Apple-Samsung case will provide yet another glaring example for legislators -- to accompany the recent, abusive Oracle-Google lawsuit -- that the patent system is fatally flawed when applied to software-based technologies. It needs a fundamental rethink, one that recognizes the role of individual inventors ahead of big-budget manipulators of the legal system.
This article, "Apple v. Samsung and the broken patent system," was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.