More Patents, Less Competition


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Feb 4, 2011
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I wrote this "editorial" if you will, for my new blog. So I just want to get people's opinion on it, as far as content, style of writing, citations, pretty much anything within it.

Original at: Mad Russian's Tech Blog

Citations are in the original post since I'm too lazy to add links in here as well. I've edited out the cursing but if I've missed some, mods, please let me know.

The purpose of this post is to show the absurdity of litigation over software and hardware in today's mobile industry, and the incompetence of the patent & trademark system.

Before he created one of the most famous car brands in the world, Ferruccio Lamborghini was building tractors. His company became one of the biggest agricultural equipment manufacturers in all of Italy. With that success, Ferruccio Lamborghini could support his love of luxury cars. In 1958 he bought his first Ferrari. Over the years he bought more Ferraris, however, he was never really satisfied with them. Lamborghini felt the cars were too noisy, too rough on the road, and unreliable. Ferruccio expressed his dissatisfaction with Ferrari cars directly to Enzo Ferrari himself. After Enzo dismissed Ferruccio?s concerns, Ferruccio Lamborghini sought out to build his own cars, better than Ferraris. And thus Lamborghini was born.

Now whether or not it was Enzo Ferrari?s dismissal of Ferruccio's concerns that drove Ferruccio Lamborghini to start building his own cars, the point I was trying to emphasize with that little story is that it was competition that gave birth to an automotive legend. It was the desire to create something better. And throughout the years that something evolved into, arguably, one of the best supercars in the world. Today, Ferrari and Lamborghini are two of the biggest rivals when it comes to supercars. If only today?s mobile & tech companies were as open to competition as car companies.

No, in today?s world it seems when companies like Google, Apple, Microsoft, RIM, innovate something, or more likely buy-out the company that innovated a certain thing, they also have to keep an army of lawyers ready to strike or defend. It seems in today?s world, every little thing on a mobile device, every action, every gesture, every window, every feeling, every look, has a patent protecting it. Some patents make sense, some are just ridiculous and shouldn?t have been granted in the first place. There?s nothing wrong with patenting your innovation, but the question is, who really innovated the thing you want to patent? Has something similar been done before? And is it truly deserves to be patented or is it just a common-sense innovation or improvement - think Daimler?s first 4-wheeled car in the world. When I read all these articles about companies suing each other over patents, some companies bullying others into licensing deals, large companies buying smaller companies just for their patents, ?non-practicing entities? buying and selling patents for millions; it seems to me that some of these companies just want to patent every little conceivable thing they can think of and silence major competition in the process. Like the old saying goes - competition breeds innovation. Nowadays, lawsuits over b.s patents are killing both competition and innovation!

In automotive industry if one company makes a car and another company makes a better car, the former says ?Oh yeah?! Wait ?till our next model? - hires engineers and designers to build a better car than the competitor. Competitor does the same. In mobile industry, if one company makes a phone or tablet and another company makes a better phone or tablet, the former says ?What?! People like your products more?!? - hires a legion of lawyers to sue the living s*** out of the competitor. Competitor is forced to either pay legal costs (obviously), pay licensing fees, alter their hardware and/or software, have their products banned, or be bought out by another company. Sure ?better? is subjective but when a majority of people like certain products more than other products, those products are generally viewed as ?better? than others.

As much as fanboys like to argue over who created the first smartphone or tablet, what really matters is what the general public wants. And right now the general public wants an Android phone and an Apple tablet. At least according to Gartner?s data, & IDC which shows that for the 3rd quarter of 2011, worldwide Android smartphone market share was at 52.5%, while Apple?s iOS was trailing behind Symbian at 15%, RIM at 11% behind iOS, and Microsoft?s Windows Phone 7 smartphone market share finished as ?the last winner? at a measly 1.5%. For tablets, Apple's iPad took around 61% of the market share while Android and WebOS were left with scraps of about 5% each. From my personal experience, at present, people want phones with big beautiful screens - 4.5? or even larger; that work fast and fluently; provide a quick distraction in a form of music, videos, pictures, or games; and provide basic communication features like calls and texts. Most people don?t really care about brand or operating system. They just want a device that works for them. So how does all of this relate to patents? Well, all those features have about a 100 patents for each of them. And as companies sue each other over patents, bully others into licencing deals, or try to ban the sale of products, ultimately, it?s the actual end-users, the people that buy those mobile devices who end up getting f***** by patent warfare. A good example would be HTC removing one of the features on their phones because of alleged patent-infringement. Now, it might be a small feature that people might not even notice but what about the current and future patent-infringement lawsuits? What about when companies are required to remove major features in the user-interface or at the core of the device? And what if their solution to avoid removing a feature is to change it to something not nearly as intuitive as what they had before? The only other solution seems to be cross-license deals and/or paying royalties to companies who supposedly hold the patents in question, or more likely, companies who have a bigger army of lawyers.

Speaking of cross-licencing and royalties; Microsoft is already getting $5 for each HTC Android device and is actually asking for higher fee per device. Microsoft has also reached a cross-licencing deal with Samsung and will receive royalties and supposedly share patents between each other. Although it?s unclear how much in royalties Samsung would have to pay and which patents are going to be ?shared?. Last year Microsoft sued Barnes & Noble, Foxcon, and Inventec over some ridiculous and outdated patents for features in Nook e-book readers that run Android. Some of those useless patents include one on ?handles? for selecting text, loading-status icons in the browser, and a patent on tabs which was proven to be invalid by IBM according to that source link. Windows Mobile wasn?t that popular of an OS, and now the most recent mobile OS - Windows Phone 7, is trailing even some older and not-really-a-smartphone operating systems when it comes to sales. Sure it might be more popular than Symbian or Bada in US, but in the rest of the world... Microsoft?s current strategy looks to be: if you can?t beat them, sue them!

And now speaking of sharing, something Apple doesn?t seem to be familiar with. There?s a reason why Apple is receiving a lot of hate, especially regarding their legal matters. It?s not because they want to ban the sale of products of their biggest competitor; it?s not that they sue small start-up tech companies over Android used in millions of other devices; it?s not that Apple uses child labor; it?s not that they call in their goon-squad to threaten people over alleged info leaks; it?s not the fact that Apple calls that same goon-squad to spy on it?s own employees and check their private emails & phones for ?leaked info?; it?s not that Apple wants to patent every little effin' thing imaginable, it?s not that it wants to destroy Android (ok this is Steve Jobs in particular); it?s not that Apple ?suggested? that New York should change it?s nickname from The Big Apple to something without Apple in it; it?s not the fact that Apple filed a trademark-infringement case against a local German cafe over their logo, and a Chinese food company for the same reason, and a restaurant, and a school; it?s not that Apple has sued a Chinese tech company over iPad name even though that company had registered the trademark in 2000; no, it?s not any of these reasons why Apple is receiving all the hatred. It?s all of the above combined and a whole bunch of other shiz that makes Apple out to be the biggest a-hole-douchebag of the tech industry! Sure every other tech company has been guilty of some questionable things but none of them are as lawsuit-happy as Apple. That isn?t to say that Apple is unfamiliar with being on the defendant?s side of the courtroom. Smaller companies started coming out of the woodwork with trademark-infringement and other nonsense lawsuits after they smelled Apple?s success, most of them are over iProduct names. Nokia also took a shot at apple, and won, with Apple being required to make a one-time payment to Nokia as well as pay up royalties in the future. Unlike Microsoft, it seems when it comes to mobile industry, Apple doesn?t want to cross-licence their innovations with other companies, they want to bury other companies.

iOS and Android are currently the two biggest rivals in mobile operating systems in United States. Despite how Android fanboys enjoy screaming that Apple didn?t ?innovate? anything and all the features that you see on the iPhone were done before, the fact of the matter is that it was Apple?s iPhone that brought the smartphone to the general public's eye. It was Apple?s marketing combined with an easy-to-use product that popularized the smartphone. That popularity gave birth to competition from other companies who came out with their own mobile systems and improved the ones they had. Same thing with tablets. iPad, despite having a dumb-ass name, is the most successful tablet ever made. Tablets prior to iPad were thick, clunky, and most importantly, ran systems designed for a desktop computer. After iPad proved to be a success, all of a sudden tech companies are jumping on the tablet bandwagon like an anemic vampire jumps on a used tampon. All trying to dethrone the king, unsuccessfully. Although Android tablets are chewing away at Apple?s iPad sales, they are still far behind.

It does make sense that Apple would try to patent things that made their products successful, but that brings us back to what I?ve mentioned before: who really innovated the thing you want to patent, has something similar been done before, and does that ?feature? truly deserves to be patented? As in the case of Apple VS Samsung, where Apple argued that Samsung copied the look and feel of the iPhone and iPad. Now, Android fanboys, let?s not bull each other, Samsung did copy the iPhone 3GS with the original Galaxy S. The almost identical rectangular shape with round corners, the rim around the bezel of the phone, the physical center button, the 4-icon dock, the simplistic dock background, the 4x4 icon grid, horizontally scrolling through the apps with dots indicating which page you?re on. With all those similarities, Apple would?ve had a good case against Samsung. But then Apple decided to include other Samsung devices which look nothing like the iPhone or iPad; like Galaxy S2, Nexus S, Droid Charge, Infuse, Galaxy Tabs 10.1 & 8.9. And this is where I and a lot of other people began having a little issue with Apple?s lawsuit. Not to mention Apple?s claim that Samsung has copied their multitouch method, flat screen surfaces, and rectangular shape with rounded corners. And Apple?s laughable design alternatives that don?t infringe on Apple?s patents. The only people that would mistake an iPhone with something like a Droid Charge or a Nexus S are the same ones who need help accessing ?the internets? or somebody with cataracts. Samsung is not making this court-room-pissing-contest with Apple go away any faster by trolling Apple with their new Galaxy S2 adds.

And now we come to a certain group of companies which are hated by pretty much everybody (except their lawyers of course) - Patent-trolls Non-practicing entities. Who are ?non-practicing entities?? Well, to put it simply, they are companies that supposedly invent or innovate something, patent it, then sit on those patents waiting for somebody to ?infringe? on them so they can extort money licence those patents and get paid by the companies who actually manufacture, market, and sell products. One of those useless trolls companies recently filed a lawsuit against Google and Groupon over their online deals for restaurants. Amazon has been hit with a lawsuit from Acacia Research Corporation aka Acacia Technologies aka Acacia Media Technologies aka Smartphone Technologies aka IP Innovation aka About 20 Other F****** Names. The lawsuit is over tapping icons on a touch-screen device. The case was apparently ?resolved?, although, it?s unclear whether or not there was any payments involved or licencing fees for that matter. The same trolls also sued Apple over the user interface in Macs. Unfortunately, Apple paid them off entered into a licencing agreement with the patent-troll instead of giving them a proper smack upside their head and telling Acacia to behave.

One of the most infamous patent-trolls, Lodsys, sued some of the biggest app developers for both iOS and Android: Rovio Games (Angry Birds), Electronic Arts (Sims 3), Atari (Atari?s Greatest Hits for iOS), Square Enix (Big Hit Baseball), Take Two Interactive (2K Sports NHL 2K11). This lawsuit seems to be over in-app purchasing that Lodsys claims to have invented, even though the developers in this case use Apple?s software coding. Small-time developers weren?t safe from Lodsys? douchebag behavior either, as early last year some developers had received legal threats and requests for royalties from Lodsys over in-app purchasing. Apple took notice and sent Lodsys a cute little passive-aggressive letter basically saying ?the developers use our APIs, not yours, so please stop trolling?.

In one particularly interesting case, Google was sued by two people over two patents for online ads. I found it very interesting because those two people patented a way to show ads on a web page, claimed Google infringed upon those patents with AdSense and wanted Google to pay 20% of all their AdSense revenue. There was just one tiny problem, they couldn?t actually create the software that they?ve patented. Yes, the two a-holes that thought they were entitled to 20% of Google?s AdSense revenue could not code their own software! Needles to say, the case was dismissed. As ridiculous as that case was, Google actually fought the case where many other companies would simply pay off the vultures "patent-holders" or use their patents under licence to avoid the higher cost of litigation. Wouldn?t it seem that by paying patent trolls off instead of going through litigation, will open a door to more lawsuits from people and companies who don?t actually do anything with those patents? Maybe it?s just my stupid logic...

On August 12, 2010 Oracle filed a lawsuit against Google over Java code used in Android. This is one of only a handful of lawsuits that actually sounds legitimate since it is over an actual code used in Android and not some vaguely-worded patent that was granted 15+ years ago. One interesting bit of info I found was that Sun, the company that actually created Java before they were bought out by Oracle, approved Google?s use of Java code in Android. Sun?s CEO, Jonathan Schwartz wrote in a blog post about his approval of Java in Android. After Oracle acquired Sun Microsystems in 2010, that post was gone.

I?m sure I didn?t have to mention that this post is about as subjective as Steve Jobs? interpretation of ?stealing innovations? but that doesn?t change the fact that something needs to be done about all this patent warfare. I?m sure there are a ton of patents that need to be reexamined on their validity, a lot of patents need to be more specific, some need to be canceled or dismissed, and patent trolls or "non-practicing entities" as they like to be called, should just f*** off. Well, the last one is a bit of a stretch, but still, they should at least be limited to the amount of ?damages? they can sue for. After all, patent-trolls do not actually use their own patents in their own products. Microsoft acting like a big bully beating up a nerdy kid after loosing a chess match and taking his lunch money. Apple suing everything with lower-case ?i?, ?pod?, or ?apple? in it?s name and requesting a ban of product sales of their competitors. Google buying Motorola Mobility for $12.5 billion for Moto?s patent portfolio to defend Android (here?s hoping they won?t go on offensive). And a whole legion of unheard-of, useless, patent-trolls waiting like vultures for companies to release a successful or potentially successful product so they can swoop in and tear it bits by bits with legal threats, lawsuits, and licencing fees. It?s not entirely the fault of tech companies who go on offensive against their rivals with litigation, it?s what enables them to do so that is partially responsible - the patent system. Vaguely-worded patents, like D504,889 - a patent for a touch-screen device, has to go! US Patent Office needs raise their standards for accepting the wording in a patent description and its examples. Those patent descriptions need to be as detailed as possible to ensure that an unrelated type of product wouldn?t end up infringing on that particular patent. Patents that were initially filed for some feature on a computer over 10 or even over 15 years ago, should not be applied to smartphones and tablets of today. With that said, USPTO needs to reevaluate the patents currently in effect. Not every damn thing needs to be patented!

Again, I just want to get people's opinion on this piece, as far as content, style of writing, citations, pretty much anything within it.

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