“As Apple prepares to defend itself against a multi-billion dollar patent infringement claim in Europe,” reports Apple Insider, “the company has aligned with rival Google in asking the U.S. Supreme Court to allow stiffer penalties for patent trolls who bring frivolous lawsuits.”
Well, it’s about time. But the problem with Apple’s position is that there’s no such thing as a patent lawsuit … or for that matter, a patent … that isn’t frivolous (“not serious in content or attitude or behavior”).
It’s true that patent litigation has become more and more visibly silly over the last few years, but as a major player in the silliness (having, among other idiocies, applied for — and received! — a patent on rectangular devices with rounded corners) Apple doesn’t have much standing to complain about that. There’s not enough room in this column to really go into Apple’s other “intellectual property” howlers, but let’s name two:
Their flagship Macintosh line began as a lock, stock and barrel copy, from user interface to peripherals (ever heard of a “mouse?”), of Xerox’s 1981 Star terminal system. And they briefly sued (before settling with) Amazon over “rights” to the words “app store.” So please, let us break out the world’s smallest violin for Apple’s angst over “patent trolls.”
Even if patents actually accomplished their advertised purpose — “securing for limited Times to … Inventors the exclusive Right to their … Discoveries,” as the US Constitution puts it — they’d be a very bad idea. The claim that one can own an idea is silly on its face, and not a claim that anyone would pay the slightest mind to were it not enforced at gunpoint by the state.
But the advertised purpose of patents is not their actual purpose.
Their actual purpose is to restrain competition and limit innovation so as to provide economic advantage — monopoly pricing power, in fact — to established firms who, by virtue of their ability to pay off (pardon my indelicate language; I believe the word I’m looking for is “lobby”) politicians, bureaucrats and judges, can thereby indulge their desire avoid market competition on price or quality.
Decades ago, I worked for a well-known boat manufacturer. One summer, I spent several weeks as the “menial tasks” guy — hauling boats and trailers back and forth for modifications, that kind of thing — for the company’s newly hired boat designer as he worked to assemble a prototype “different enough” from the last boat he’d designed (for another firm) to avoid (or at least successfully fight) “infringement” claims. I don’t know how much this “patent compliance” runaround (and any ensuing litigation) added to the cost of each unit of the new boat, but there’s no doubt that it did affect the retail price.
In other words, patents are indirect taxes on consumers. Patent monopolists can charge higher prices because government suppresses their would-be competitors for them. And if those competitors do manage to bring products to market, those products are also more expensive because they’ve had to spend money on patent licensing, or on patent research to avoid “infringement,” or on insurance to protect themselves against patent litigation.
Apple’s complaint, in its essentials, is that patent “trolls” just buy up patent “rights,” then search for infringement to cash in on, rather than going to the trouble of making real products. But why shouldn’t they do that? If, as Apple would have us believe, patents are a legitimate market instrument, then the “trolls” are just exploiting that instrument more efficiently than Apple cares to, right?
The problem isn’t “patent trolls.” The problem is patents.
Translations for this article:
- Italian, Il Problema non sono i Patent Troll. Il Problema Sono i Brevetti.
- French, Les « trolls de brevets » ne sont pas le problème. Les brevets sont le problème.
Citations to this article:
- Thomas L. Knapp, The problem is patents, not ‘patent trolls’, Dhaka, Bangladesh New Age, 02/08/14
- Thomas L. Knapp, The Problem Isn’t “Patent Trolls”, Counterpunch, 02/07/14
- Thomas L. Knapp, The Problem Isn’t “Patent Trolls.” The Problem Is Patents., Baltic Review, 02/06/14
- Thomas L. Knapp, The Problem Isn’t “Patent Trolls.” The Problem Is Patents., Before It’s News, 02/06/14
Actually, Steve Jobs first saw the Xerox Alto, in December 1979, which was the basis for the commercial Xerox Star.
In 1977 I met with Jobs in the Apple storefront factory (Apple in an 1100 square foot empty store in a shopping center in the south bay).
There I showed him our new invention a low cost high resolution touch pad/screen and talked to him about GUIs and the notebook computer and in particular the Dynabook and Alan Kay.
Jobs said he was not interested and further that he and Woz felt character graphics was all their customer base would ever need.
Besides illustrating the very un-visionary aspects of Jobs this example illustrates just how long it takes to bring something really new to market, 1977 to arguably 1997 or later LONGER THEN THE LIFE OF THE PATENT.
Without patents it is very difficult to raise money for new things. Take patents away and the creators will do something else or move somewhere else in the world.
Currently there is no widespread mechanism for returning value to the originator of "valuable" ideas – assessed by an individual as having value, unless such originator is directly related with the sales of a product or service – but even this method does not distinguish well between the originator of the idea and some duplicator of it. The actual concept of individuals returning value for value gained in the realm of information, as contrasted with products or services, is one that has yet to take hold in the general public. People need to realize that unless the producers of information (which includes novel ideas, music, literature, etc) are returned value *by those who find that information of value*, there will be less forthcoming from that producer and likely fewer producers overall in the future.
Government's mechanism of patents is not the solution to getting value even to creators of products; they are a stifler of competition and innovation and also a tax (coerced payment) as Tom writes. But before mechanisms for returning value for value gained can hope to be successful, far more people need to come to the realization both that the value returning by those valuing is in their own best interest AND that government is NEVER a solution.
Private intellectual property rights title & insurance companies and courts to have a role in assessing the value of incremental innovation whittling away at the primary primitive patent. I advocate that mere invention involving the investment of 10 years of a person's will and life and say $10-million if you get some buddies who believe in your whackko idea, needs to be honored as a form of property. The non-arguments (assertions) above show little understanding that it is not merely the idea but the expression of it that is proper to reward. Innovators that quickly stick a diode on your idea will cause consumers to stampede to the version that lights up, and the inventor receives nothing for the error of not putting a penny diode on the device. In my free market world, the inventor would receive 97% rights to property rights and the first innovator 3% while no one would be stopped from going to market or getting to market first which gains you enough to hire advocates to settle things out in the chambers of commerce in the back of the merchant-adventurers halls — like they once were in England, France, New England, and New France.
Excellent essay, Tom!