Behind the Research Curtain: Debating Intellectual Property Protection in IT

Within Saugatuck we often have interesting internal debates about a wide range of industry issues. The one that came up Wednesday was Apple’s winning patent protection for the iPhone's graphical user interface for displaying electronic lists and documents. Wired ran a blog post by Christina Bonnington, “Apple Wins a User-Interface Patent That Smartphone Copycats Should Fear” that I picked up in Twitter and passed to my colleagues. Before I knew it, comments were flying fast and furious. I thought it would be informative, and entertaining, to share some of that internal debate with our blog readers.

Are software patents and copyrights a good idea?  Those who invest in the intellectual property seek some protection from the theft of their innovation and labors. As Apple CEO Tim Cook said at the D10 conference earlier this year, “From our point of view, it’s important that Apple not be the developer for the world.  We can’t take all of our energy and all of our care and finish the painting, then have someone else put their name on it.”

The scent of Oracle v. Google is still in the air. Aside from the calculated risk of Google’s failing to license Java for $25 million and Oracle’s billion dollar damage claims, nothing compares to the sudden reversal of fortune when Judge William Alsup ruled, "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API.”

With that as background, here is a fair sampling of the resulting internal debate from Saugatuck’s software business and market analysts:

Apple is being hypocritical:

“Apple ‘does not want to be the developer for the world,’ but they want to control what gets developed, how it gets developed, how it works, and what it looks like.”

Software patents and copyrights stifle innovation:

“I think that, at some point, the following three things will happen:

1. Software patents will effectively stifle technological innovation in the most important industry the world has seen since steel making began;
2. Software patents will be effectively voided by court decisions in some markets, leading to pockets of stagnation versus pockets of innovation and competition; then
3. New rules regarding software patenting will be (almost) universally and (almost) uniformly adopted, enabling some improvements in intellectual innovation/competition while protecting entrenched interests.”

Really?

“How does this stifle innovation if it is aimed at preventing outright copying (by Android manufacturers) the software user interface designs of the iPhone? It would be just as easy to argue this forces innovation by requiring them to find other approaches…”

Yes, really! They are legalistic extortion:

“If more such actions were aimed at preventing outright copying, I would agree. But too many of the patents (or attempted patents) have been filed and applied in attempts to stifle and/or profit from the most basic types of IT and interaction used today. And it is too often done hypocritically by firms that either appropriated or stole otherwise-patented technologies, designs, code, or interfaces; or by patent trolls seeking to do nothing more than profit by threat. Apple and MSFT among many others, in my opinion, belong in both those camps.

“I am simply against the use of patent and copyright law in this manner – and not against patents or copyrights in any way. Where there is a truly and obviously  unique method or technology involved, I am all in favor of protecting whoever developed it. I think the big intellectual challenge in IT today is what constitutes ‘unique.’  I don’t know what that is. But I am pretty sure I can recognize cynical, legalese-based obstructionism and anti-competitive behavior, that is what I see in Tim Cook’s/Apple stance, among many others.”

And another thing, if I might add:

“In my own ‘gut instinct’ judgment, I think software patents are the worst idea the software industry has. R&D costs get recouped not by patents but by the PR that the company can muster.”

“Many of the languages that software is programmed in have fewer than 400 ‘words.’ In a million lines of code, or 10 million, there is necessary duplication of functions and exact structure. Though there may be many ways to do something, a path of least resistance emerges for lots of mundane code.”

“Open source has not negated profit.”

“How loosely can a process be patented? swipe to unlock? pinch to zoom?  I think the existing ecosystems define what I use more than the actual features. Sure, I'd probably like to root a Droid and customize it - it would probably be better for me. But since I have a Mac, and the associated ecosystem, the iPhone's integration with the rest of my systems is a trump card.”

“Software is more like a recipe, just like Coca Cola, or CPM S30V steel, rather than a tangible good. Additionally, software makers routinely change the ingredients - more efficient functions, layouts, features, UIs, etc. to patent something that fluid is to stifle innovation directly.”

Not so fast, Jane, you ignorant ****:

“I suspect similar concerns about stifling competition or development could be stated about patenting hardware designs. But, that doesn’t seem to have happened.”

“I don’t think patenting software will stifle competition. Rather, I think patents may motivate creativity. Of course there is the possible exception that since the iPhone is so dominant in the market, its interface has become a de facto standard. But, even that is likely temporary…just as BlackBerry’s interfaces were de facto standards. In fact this could work against Apple. They may find themselves having to license for use of some new user interface that Google or Msoft develop.”

Oh, one last thing:

“I think you are right on all counts. But it gets even messier in looking at international cases (Megaupload being a case in point). Laws differ between countries, and today you cannot say whose jurisdiction the data in question might fall under. There is a lot of bullying going on of large companies that can afford to sue small companies, and large countries that can pressure small countries. Not to mention the enormous time wastage and stifling of innovation. I think everyone agrees that something needs to be done, but nobody knows quite what the answer might be. And, if they did, cynics would push for the wrong solution because it profited them!”

It’s fair to say we debate these technology issues vigorously at Saugatuck and, though we usually do reach consensus, rarely is there unanimity on any issue.  However, I think we do all agree on this one point: When it comes to intellectual property claims, the only certainty is more uncertainty. Stay tuned!