Dec 202011

As common as the articles telling Apple what to do with its cash or making out Apple users to be members of some kind of cult is the story bitching about how the company defends its intellectual property. They usually travel from “Steve Jobs said great artists steal” to “Apple’s patents have no merit” in under 500 words. These articles just stop short of abolishing the practice of defending intellectual property and the current patent system, although every other word seems to say exactly that. These hit pieces pop up every time Apple files a lawsuit, so it wasn’t shocking to see it exhumed once one of Apple’s claims actually got some traction, which happened yesterday. The International Trade Council agreed that HTC infringed on one of the 10 patents subjected to the body in 2010 for “data detectors” – the hyperlinks that allow your iPhone to recognize dates and phone numbers and forward them to the appropriate apps – and gave HTC until April 19 of 2012 to engineer a workaround before its phones face an injunction in United States.

Mat Honan’s “If Apple Wins We All Lose” is an archtype of this kind of rhetoric, and it’s no surprise that it came from Gawker Media’s Gizmodo. It’s surprisingly worse than most of the word count published on this topic, which makes it kind of fun to take apart.

Yesterday’s news that courts had ruled against HTC in favor of Apple was a tidy little victory for Apple. But HTC is just an initial skirmish in a much larger fight. The real war is against Android, and if Apple wins that, we’ll all lose.

Apocalyptic topic sentence echoing apocalyptic byline: check.

The iPhone was like nothing that came before. And Apple should be able to protect its innovations and intellectual property. But the Cupertino Crew doesn’t just want to do that; it wants to kill Android. It wants Google’s mobile OS to go away. No settlements. No licenses. Dead. Jobs said as much, very explicitly.

This philosophical “middle ground” between the ability to protect one’s intellectual property and not having a patent system has to be restated several times throughout pieces like this. It’s what I like to call the “standard disclaimer”. Even though every other word in the article is going to be a slam against both the patent system and of Apple’s claims within the system, because the author doesn’t want to come off as a (bigger) moron, he’s obligated to pay it lip service.

There are two avenues Apple can take to achieve this victory: the marketplace and the courts. I’d be all for Apple winning fair and square in the marketplace. It’s okay for consumers to decide the victor in this fight. But it’s not okay for a handful of judges and lawyers to dictate the direction of technology. For Apple to win in the marketplace—and I mean total dominance here, the kind of thermonuclear war that an apoplectic Jobs described in Walter Isaacson’s biography—it would require both innovation on a massive scale, and real price competitiveness. Realistically, that’s not going to happen. It’s already impossible, at least in the next three years. Android’s foothold with consumers is already too strong. Its phones are too inexpensive, and Google and its device manufacturing partners are too committed to Android for it to fail completely.

So the marketplace and the courts are mutually exclusive venues–the only 2 options for companies to achieve market dominance? Interesting. I always imagined the marketplace as a complex organism subject to many axes of competition, both quantitative and qualitative – price, quality, design – to name a few. Some of these axes can be protected by intellectual property law. The details of how this property is protected will always be up for debate, but you can’t make an argument that no system is better than a broken one. Apple is a company with a history of being fucked over on the intellectual property playing field. Their biggest mistake was made with Microsoft, a mistake that was exploited during the absence of their leader. That mistake factors largely into how Apple perceives the value of its IP and the lengths it is willing to go to protect it.

So that leaves the courts, where Apple keeps pressing its case—largely against device manufacturers. That’s not okay. The patent system is broken. Deeply, and profoundly so. The system that was created to foster and protect innovation, now serves to strangle it dead. Apple has real innovation. And real invention. So why act like a cheap patent troll, taking advantage of a body of under-qualified legal professionals to make decisions about which technologies consumers will be able to use? Does that bother anyone else?

Again, Apple is not responsible for how “broken” the patent system is in this country. Its only choices are:

1. To defend its intellectual property.
2. Not to defend its intellectual property.

If Apple does not defend its patents, it will forfeit future rights do so. This is common knowledge in all businesses that are can be governed by patents, and it’s certainly not “trolling”. It seems as though Honan saying that because the system is, in his opinion, broken, that Apple has no right to defend its innovations. This rhetorical masturbation has become the trademark of Gizmodo’s writing.

Granted, the iPhone was a sea change. So was the iPad. And Apple ought to be able to protect the innovations and intellectual property that set those devices apart. If Apple was only competing on iron-clad patents—if it was just forcing its competitors to think way out side of the box, that would be great for innovation. But it’s not. Apple is playing the same stupid games everyone does in the patent wars today.

Here we go again with the Apple deserves to defend property/Apple doesn’t serve to defend this property. Apple subjected 10 patents – patents that were granted by the USPTO – for consideration by the ITC. One of them was found to be infringed upon. Is Honan’s stance that none of these patents merit protection? Apparently they don’t rise to the “iron-clad” standard that is the foundation of…oh, I guess this “iron-clad” proviso doesn’t exist in any of this country’s current patent law. Could it be that Mat Honan is making up legal terms in an attempt to generate interest on a topic that has been beaten to death, resurrected and beaten to death again about 500 times?

A little bit about patents: For something to be patentable, it must be (or at least it should be) novel and non-obvious. You should not be able to find existing examples of it in prior art—in other words, when you look at the history of similar products, whatever you’re patenting needs to be unique.

I admit I laughed out loud at that. Mat Honan, obviously an officer of the USPTO, is going to educate us about patent law. Allow me to secure my bifocals and Number 2 pencil.

Now, certainly, some of Apple’s good stuff is novel. No one had ever seen anything like the iPhone prior to 2007. Yet clearly some of the things Apple is gunning to protect are, well, obvious.

Oh wait – you mean that’s it? That’s your entire lecture? Jesus and I thought I needed to go to school for this. I thought there was an entire government agency dedicated to this – one which apparently didn’t share Dr. Honan’s opinion about what’s patentable.

What Apple won the rights to in this most recent HTC case, was basically a patent on the act of recognizing patterns and acting on them—like when you tap on a phone number in an email to launch your dialer and make a call. Thing is, Google was recognizing numerical strings (including phone numbers) and tailoring search results to them long before the iPhone came out. Dating back to at least 2006 (maybe earlier) you could enter a UPS tracking code into Google, and it would parse that number, ping UPS and return tracking information at the top of the search results. It would do the same thing with phone numbers. It basically did everything the iPhone did, short of make calls. Was it non-obvious for a mobile phone to do what a search engine was doing? I don’t know. I certainly think it’s debatable, yet this is the issue that Apple just beat HTC on.

Actually, some people that know what they’re talking about when they get behind a keyboard provided a concise history of the ‘647 patent, one that predates whatever Honan thought Google was doing with UPS tracking codes. As a matter of fact, it was granted in 1999. If journalistic integrity was valued in the blogosphere, this catastrophic misstatement of fact would put a site like Gizmodo out of business. Sadly, the “durrrr Google did something like this first” smoking gun is as factual as the author gets.

Likewise, the iPad also had many novel features—like that genius subtle backside curve that makes the device so easy to pick up off a flat surface. But if you look at what Apple wants to get Samsung to drop—the bezel and the rounded corners and the rectangular shape and even the color—it’s clear that Apple wants Samsung to try to make something that goes against good design principles established well before Apple rolled out the iPad.

This is not what Apple did. It is what your site’s flametarded editor said, illustrated by flametarded Photoshops to depict Apple in the worst possible light at the expense of the facts. If you’re interested in what Apple was actually trying to do when it made recommendations to Samsung about how it could change the design of its tablet so that it didn’t infringe on the iPad, you would know that if Samsung had decided to do one thing differently, it would not be infringing. The Xyboard? Not infringing. Apple did not say “do all of these things at once”. I swear Gizmodo is trying to make the internet stupider one post at a time.

I think a lot of this can be blamed on Apple’s past history. It lost big in the courts once before. And it’s determined not to do so again. In some ways, Apple is becoming the George Wallace of technology companies. In 1958 George Wallace lost the Democratic gubernatorial primary in Alabama to his opponent John Patterson, who campaigned on a more virulently racist pro-segregation platform than Wallace had. In response, Wallace said he’d never be out-segged again. Nor was he. In 1962, Wallace stormed into the Governor’s office and national stage on a campaign of “segregation now, segregation tomorrow, segregation forever.” Apple’s Wallace moment came in 1994, when it lost a massive legal battle after the courts ruled that it could not prevent Microsoft and HP from shipping computers with graphical user interfaces that used the desktop metaphor. Apple argued that its copyrights were being violated, but the court decided Apple’s copyrights weren’t afforded patent-like protections.

This paragraph actually elicited a verbal response from me. That response was “Wow”. It’s like the entire universe of comparative anecdotes compressed into an infinitely small point and then exploded with the intensity of a billion novae. What the fuck does a racist politician’s segregation platform have to do with a company defending its IP? The best I can come up with is that Apple is supposed to be riding an unpopular practice (defending Honan’s “softer than iron-clad” IP) harder the second time it had the opportunity to do so (the iPhone) after not having the opportunity the first time (against Microsoft).

(Of course, it didn’t help that Apple wasn’t the first company to ship a computer with a graphical user interface, mouse and a desktop metaphor. That was Xerox, which had all that on its Alto. In fact, the original plan for the Macintosh business unit was written surreptitiously on a Xerox Alto during off-hours at Xerox PARC. So it goes.)

It’s curious how, after claiming to have read Steve Jobs’s biography, Honan could misstate the Xerox PARC anecdote so egregiously. Misrepresenting the PARC story is fundamental to those wishing to dismiss any claims Apple may have on its intellectual property. After all, didn’t they rip off poor Xerox?

But something changed in between the time the Macintosh was released in 1984 and when the iPhone rolled out in 2007: software patents. They weren’t widely applied until the 1990s. This happened to co-incide quite nicely with Steve Jobs’ return to Apple. And by the end of the first decade of the twenty-first century, it was game on. And so, in 2007, when Steve Jobs announced the iPhone, after scoring big points with the crowd on the iPhone’s features, he did a little endzone dance for the competition, crowing that the company had patented the Bejesus out of its fancy new phone. It had learned its lesson in fighting Microsoft on copyright rather than patents, and was clearly determined to out-patent anyone else in the then-nascent smartphone market. Now we’re seeing the fruits of those patents. They’ve afforded Apple some significant victories. But if you look at the past as prologue, as Apple seems to be doing, I don’t think it’s so clear that it would ultimately be good for Apple to kill Android in the courts. And it certainly won’t help consumers.

In other words, Apple felt it had been duped and out-maneuvered by Microsoft, so it wanted to take whatever legal measures were available to defend its intellectual property with the iPhone in 2007. I guess Honan gets paid by the word. At least I hope he does.

Try this thought experiment: Imagine Apple had been successful in its suit against Microsoft. Imagine Microsoft had been prohibited from shipping Windows 2.0 or Windows 3.0—or, by God, Windows 95—without licensing the hell out of it from Apple. Where would we be? Without Windows there to pressure Apple to Build Something Better, things would be very different in Cupertino today. After it lost its case with Microsoft and saw its market share dwindle to nothing, Apple had to innovate like crazy. Had Apple won, it never would have had to transition from the System 7-era to Mac OS X. It never would have had to buy NeXT. It never would have had to bring prodigal son Steve Jobs back into the fold. Without Mac OS X, there would be no iOS. And without iOS, no iPhone, no iPad.

/takes massive bong hit

So you mean, like, intellectual property rights actually kill innovation? I mean, that’s like totally the opposite effect of what the people designing the system want it to have, maaaaaaaan! Imagine that…under my fingernails…a tiny universe might exist! Thought experiment maaaaaaan!

George Wallace used segregation as a bludgeon, quite effectively, to win elections. But today, it’s clear that he ultimately injured himself, Alabama, and the nation as a whole for very many years to come.

Keep banging that drum, Mat. I know your totally relevant recounting of an obscure southern election jammed into the mold of IP defense tactics is going to make the Harvard Business Review any day now. Or Worst Fucking Analogies Ever Quarterly. One of those two.

I’m all for seeing Apple defend its intellectual property. But Android is a healthy force in the marketplace. If Apple can destroy it there, more power to Tim Cook and company. But if Apple beats Android in the courts rather than the marketplace—if it out-segs Google instead of out-innovating it—that may be great for Apple, but it will be bad for society, bad for technology, and ultimately bad for Apple.

Third time’s a charm, I guess. You’re not for Apple defending its property, Mat. You’re for a generalized defense of intellectual property based on some criteria you don’t even define very well. But please, feel free to squawk like a racist Eric Schmidt with your “patents are the antithesis of innovation in the marketplace” horseshit.

And of course, the great irony is that so much of the amazing innovation that Apple pulled off over the past three decades can be traced back to its willingness to swipe ideas from Xerox. Steve jobs was fond of quoting Picasso, saying “good artists copy, great artists steal.” If Apple does succeed in crushing Android in the courts, where will it get its next great idea? My guess is that it won’t come from a lawyer.

So there’s your wrap-up, which touches on the mandatory “iron-clad” talking points present in any piece that slags Apple for defending its patents: a misrepresentation of the Xerox PARC story and the standard out-of-context quote from Jobs about Picasso, wrapped up with a quip about how ironic it all is.  Where will the next great piece about Apple, Android and the intellectual property landscape in this country come from? My guess is that it won’t come from Mat Honan.

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