Apple vs. Samsung–Musings on Software Patents

Recently Apple won a billion dollar plus judgment in its suit against Samsung about patent infringement on smart phones and tablets.  I’m not an intellectual property attorney so I can’t offer an expert opinion on the law in this case.  I’m more concerned with the idea of software patents in general.  Patents come from an era when technological advances were mechanical, electrical, electronic…  Although there are some examples of patents being granted for some questionable things, patents of this sort generally do cover a new way of doing something that either couldn’t be done before or is so much better than existing ways of doing it that it’s an obvious departure from what the law calls “prior art.”  It’s not enough to have an idea.  You have to develop a concrete technique to implement the idea.  Software patents don’t seem to have to meet this criterion.

Software is different.  Anyone with a programming or computer science background can tell you about a few things that are unique advances.  The one almost all programming students learn about is the quick sort.  It’s a way of sorting stuff that’s not intuitively obvious and is very efficient.  In fact it’s not easy for many students to understand without spending a fair amount of time studying it.  Tony Hoare, the inventor, was a student when he came up with the idea back in 1960.  He either decided not to patent it or didn’t think of patenting it.  There are other algorithms, recipes for performing computing tasks, that are the result of original ideas.  Most of them are in the public domain.

IBM was probably to first company to patent software on a large scale.  It is still one of the biggest software patent owners in the world.  Most big software companies own a lot of patents, which are either things developed by their own employees or existing patents that they bought.  There are also companies called “patent trolls” who exist solely to buy software patents and sue companies that might infringe on their patents.

A lot of the Apple vs. Samsung suit relates to “look and feel,” meaning how programs look on the screen and interact with the user.  In the 1990s Lotus sued Borland over Borland’s spreadsheet software that looked a lot like then market leader Lotus 1-2-3.  Lotus lost eventually although by the time the Supreme Court declined to reverse a lower court decision Microsoft had taken over the spreadsheet market with Excel.  The Lotus suit was over copyright, not patents although there are some similarities to the Apple vs. Samsung case.  Among the things Apple has patents on are a method of zooming in by tapping the screen and an interesting way of moving back to the top of the screen.

The thing that would probably strike most programmers here is that moving around on a screen is one of those tasks that can be performed in a wide variety of ways.  It depends on the operating system and the hardware, but there are few programming tasks that have a single best solution.  If it were up to me, I’d need to see proof that Samsung implemented the patented features exactly the same way that Apple did.  I’d be very surprised if that were true.

Speaking more generally, I think software patents do more harm than good.  I can’t think of any sensible reason to prevent people from developing a different way of doing something even if the result looks the same on the screen.  If a company copies another’s original software exactly, that’s wrong.  If a company develops a technique that produces a similar result on the screen but works differently from another’s, that’s implementation of an idea.

As I said above, I’m not an intellectual property attorney.  I’m just a programmer.

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