A mere two days after I lavished praise on Alex Tabarrok’s new book, which (among many other things) makes an eloquent case for patent reform, the U.S. Patent Office has proved that nobody’s listening by issuing patent #8,082,523 to Apple, Incorporated for a “portable electronic device with graphical user interface supporting application switching”. The abstract, in its entirety, reads as follows:
A portable electronic device displays, on a touch screen display, a user interface for a phone application during a phone call. In response to detecting activation of a menu icon or menu button, the UI for the phone application is replaced with a menu of application icons, while maintaining the phone call. In response to detecting a finger gesture on a non-telephone service application icon, displaying a user interface for the non-telephone service application while continuing to maintain the phone call, the UI for the non-telephone service application including a switch application icon that is not displayed in the UI when there is no ongoing phone call. In response to detecting a finger gesture on the switch application icon, replacing display of the UI for the non-telephone service application with a respective UI for the phone application while continuing to maintain the phone call.
In other words, anything you’d recognize as a smartphone seems to be covered.
Would anyone care to applaud this broad assertion of intelletual property rights? Would anyone care to jump in on the other side? Have at it!
I just read “Launching The Innovation Renaissance” today on my (new!) Kindle. Thanks for the suggestion.
Six years ago I was at a company that was aggressively patenting the work I had done, and I got into an argument with the person running our patent push. I argued that these patents hadn’t really encouraged innovation, since we would have come up with these ideas anyway as part of developing the product. He argued that without patents, they never would have founded the company at all. They wouldn’t have invested all this money into R&D only to have a competitor steal all the ideas. Tabarrok’s book points at some evidence that this isn’t true on average, though I couldn’t prove it false about this particular company.
“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”
I always thought the justification for restricting the freedom of people to make useful things as they choose (aka, patents) was that some ideas that people might use to make and sell their products would be kept secret indefinitely without patents; or alternatively, some ideas require a lot of time and resources to develop and would not pay for themselves unless they were granted a temporary monopoly.
Therefore, the purpose of patents is to encourage the sharing of useful secrets and the development of difficult ideas.
To me, such expansion of public knowledge is the only possible justification for the government restricting the freedom of people to make things. Just being the first to jump through hoops to register a patent on some idea is not sufficient justification for preventing other people from making something useful. I cannot accept someone being told, “sorry, you cannot make that because someone else already filed a patent on it” unless there is a greater good resulting from it.
But it seems that a great deal of the patents granted do not “promote the progress of science and the useful arts”. Some examples of patents that I think actually inhibit progress are: interval windshield wipers, one-click web ordering, and “smart cases” for tablet computers. There are numerous others, but those are the first that come to mind. None of those ideas could be utilized for profit while being kept secret, and none of them required a great deal of time or resources to develop (not like a niche drug, for example). Therefore, such patents inhibit rather than promote progress.
The same goes for smartphone patents. Yes, smartphones do require time and resources to develop. But unlike, for example, a niche drug, most smartphone ideas would be developed regardless of the possibility of patent protection. The development costs are easily recouped by the large market for innovative new smartphones.
I think any patent reform needs to make sure that all patents granted do serve to promote rather than inhibit progress in science and the useful arts.
Apple patent policy seems so deranged that perhaps they are destroying the patent system from within using irony. I suggest for a next move something like “a device that uses electronics to perform computations”.
The whole concept of patents is a violation of my basic rights. If I want to build a smartphone in my garage or at my factory, and I have no contract with Apple, then Apple should have no say in what I do.
For people who think a Patent Office can be a good thing because of some overall benefit to society, please read “More Sex is Safer Sex” and tell me whether you think we should also have a Sex Office to regulate the number of partners that everyone has.
It is offensive for a government bureaucracy to have so much power over what is fundamentally my own business, and it is doubly offensive to be told that it is for the greater good!
That said, this patent is particularly stupid. Anyone who used Skype on a laptop pre-2008 was demonstrating prior art.
The patent system should support the worthy aims JohnW asserts, but it has lost its way. Companies now apply for batteries of patents for obvious things, hope they get through, and then it is not worth competitors challenging them. I saw one recently that effectively patented cleaning algal ponds with bleach. One big problem is that there is no way to really challenge the patent before it is granted. The above patent may not stand up to scrutiny if challenged, but this can take years and lots of money, during which the filer has a monopoly, even if they lose.
I also used to believe that patents were to protect inventions – not ideas or discoveries. This seems to have been thrown out of the window. Many gebn=ne sequences are patented, and they are surely discoveries, and the above abstract seems to be describing an idea rather than an invention.
A relative of mine is a patent lawyer for a big tech firm. He estimates that about 1/3 of their patents are `defensible’, which I think means they would be upheld in a patent court. I’m guessing this particular patent is not defensible.
@PaulG
I disagree that patents violate your basic rights. Let me rewrite your first paragraph:
“The whole concept of [copyrights] is a violation of my basic rights. If I want to [make photocopies of The Big Questions] in my garage or [post a scanned copy online], and I have no contract with [Steve Landsburg], then [Steve Landsburg] should have no say in what I do.”
In terms of your basic rights, is their a substantial difference between your version of the paragraph and my version? This is not to say that our current patent system is ideal, because it is not. I am only challenging your assertion that patents violate some basic right of yours.
Thanks Steve! In similar news:
The U.S. International Trade Commission said on Dec. 19 that beginning in April it would ban the sale of HTC phones that infringed an Apple patent on so-called data-detection, such as touching a phone number or an address in an e-mail to dial or find the address on a map.
http://www.sfgate.com/cgi-bin/article.cgi?f=/g/a/2011/12/21/bloomberg_articlesLWJ29H0UQVI9.DTL#ixzz1hGq4Ad6S
The ITC is notorious for slapping on tariffs and other trade restrictions on importers in response to economically absurd charges of “dumping” from politically connected domestic firms. The only upside of this recent case is to demonstrate that patents are now being used for the same protectionist purposes.
Here’s one possible defense, although I’m not sure how strong it is:
When a patent is granted, the design is made public, which allows other innovators to learn about new technology and further its development. Not long after the iPhone debuted, a whole load of new smartphones were released. Without a public patent, Apple would have probably allocated resources to try and keep its technology a secret. Would this have prevented all those new smart phones from being released? It’s hard to say, but it at least seems plausible.
The key point is that without patent protection, a company will work to keep its new technology a secret, and that will prevent others from learning about it and improving it.
OK, now we all want to see Alex debate Yoram!
JohnE, yes that is consistent with my position on patents. Copyright is a similarly intrusive area of law. Because it regulates what people do in their garages and bedrooms, it necessarily results in the cops showing up in our garages and bedrooms, which should be offensive to anyone.
But at least with copyright you know when you are breaking the law! With patents you have to search 8 million documents to be sure.
So show me the harm to this patent. Apple is a business, and maybe its decision to go into the cell phone market was motivated in part by its belief that it could make an innovative product, patent it, and hold onto market share with the help of its patents. Did that make consumers worse off somehow? When you buy a cell phone, do you find your choices too limited because of patents? If not, what is the complaint?
I have found that the best analogy to patents at this point is nuclear weapons. On the face of it they’re insane devices and the world would be better off without them entirely. That said, the fact that the _other_ guy has them more or less compels you to get them as well.
Apple’s patent is crap. The fact that Apple is involved in a world-wide war (ZDNet counted at least nineteen related lawsuits happening in nine different countries) to try and drive all competition out of the smartphone and tablet business is insane. The root cause of the insanity is a broken patent system that permits crap patents to issue, and companies advised by lawyers who would rather settle than fight. The tendency to settle validates crap patents and encourages these wars to continue. It makes economic sense for each company to settle, but in terms of the global condition it leads to terrible results.
@Roger: Does future harm count? My company Pear is working on a cellular device. We use a different software substrate from Apple. We use microwave not 3G. We get the Bartlett to market. Apple sues us and so you cannot buy the Bartlett as cheaply as you might. The Bartlett might not even be for sale. Et voila: that is what you asked for.
@JLA: That’s just a general defense of patents, which is generally not controversial, and doesn’t address the question Steve_Landsburg asked about this specific patent.
Are you seriously claiming that Apple would have kept these features “secret” if not for patents? Considering that you necessarily observe the entirety of this secrety simply from using it for a few minutes? How do you even keep basic interface functionality secret, and why would you want to?
They’re not even trying to patent a specific novel *way* they hit this design target, just the fact of their hitting it!
Sure, Ken, future harm counts. But your argument applies to any invention and any patent. We have 200 years of history with patents. Are you saying that we have to little investment in cell phones because of patents? No, we have many billions of dollars being spent to develop new cell phones.
Many years ago I wrote code to do something between machines that is now readily available off the shelf. It was if I do say so a nice piece of work, but it was also a solution to a nturally occuring problem that *we had to solve in any case*. To my surprise I had to spend time *afterwards* discssing with lawyers as the company sought a patent. A perfect example of an ex post facto patent. Which they did not get as far as I know.
Paul G,
Curious, what would you say if all publishers sold books with the following contractual term:
“By purchasing this book I agree not to copy it or any other book listed in the Publisher’s Guild List [a list maintained by a private organization to which publishers submit their publications] whether or not I have purchased such books or been given access to them by some other means, nor shall I distribute by any means any book on the Publisher’s Guild List without first obtaining the agreement of any and all recipients that they shall abide by this clause as well.”
That’s not perfect not only because it is poorly drafted (but you get the idea) but because there are people who might never want to buy a book with the hope that they could just copy books and resell them, if somehow they could get access to them without having to agree to the clause.
They couldn’t try to induce a breach, that presumably is covered by coommon law concepts of tortious interference with contract. But, perhaps someone breaches the clause and gifts a book to one of these folks without demanding compliance with the clause (it is Christmas after all), and of course the damages against the breaching party don’t really cover it. One might require bonding and insurance for such breaches in the original clause, but of course that gets pretty expensive. Viewed in this light copyright law is just an efficient default contract. But then one might argue it gives you too many rights because the default contract of publishers would not expire, whereas for public policy purposes it does. Perhaps then your right to copy in your garage after the expiration period is a “freedom” stolen by the government.
@Roger: I think you are missing the objection here. This is such a broad patent it would cover the Bartlett — which ex hypothesi uses different technology and different a software stack entirely. But this is innovation we want to encourage.
It is a non-sequitur to defend this over-broad patent based on the history of some narrow patents.
The key point is that this patent covers so much so broadly without a precise mechanism.
As for too much or too little investment in cell phones I refer you to Steve’s oft-cited criteria for answering too much or too little questions. In this case a patent suit would shield me from benefits, suggesting the answer is too little. So if the patent has teeth the answer is probably not the one you want.
“Because it regulates what people do in their garages and bedrooms, it necessarily results in the cops showing up in our garages and bedrooms, which should be offensive to anyone.”
I don’t find this a very compelling argument.
Can Landsburg and I plot murder with impunity if we do it in our bedrooms and garages? Can we torture puppies there? Even worse, can Paul Krugman compose his column whilst bathing?
Roger: we emphatically do not have a 200 year history with patents of software, interfaces, “designs” and “business methods”. All of these are political creations of the last 25 years, and defending them by appealing to the utility of e.g. the cotton gin patent is disingenuous at best and deliberately misleading at worst.
Doctor Memory, you are incorrect. Only business method patents are new.
PaulG, Apple has no say in what you do in your garage. Their patents apply to what you sell in the market.
Roger, you are simply wrong. LMGTFY:
http://www.bitlaw.com/software-patent/history.html
Ken B, am I supposed to assume that the Bartlett is some kind of new cell phone invention that will be blocked by Apple’s patent? That if it were not for the evil patent systems, everyone would be trading in their Apple phones for Bartlett phones? I’d like to see some sort of real-world example of harm.
Doctor Memory, you are wrong. Your source says, “It was not always clear that computer software was patentable in the United States.” That is correct, that it was not clear to many people. Nevertheless, the patent office has been issuing software patents for as long as those applications have been submitted.
You are also wrong about design patents. The first design patent was in 1842. The design patent was not a political creation of the last 25 years, as you claimed.
I will happily acknowledge that I was wrong about design patents, and I think you are being willfully obtuse about software patents. Cheers.
I wouldn’t worry too much about this patent. Even if defensible, it’s readily bypassed. There are many (superior) ways to support switching back to the phone menu other than locally modifying the application user interface by adding a gesture-activated switch icon. Examples: 1) activate the switch application by a touch rather than a “gesture”, 2) overlay the phone application instead of switching to it, 3) maintain a switch icon separate from the application interfaces. From the text, it appears that Apple asserted a truly broad “smart phone” claim but had it whittled down substantially by the examiner.
Henrico, since that contract basically attempts to reproduce copyright law, it puts pretty onerous obligations on the customer, and I would not want to subject myself to it or to run a business that depended on it. It might be morally justifiable to enforce such a contract, but I do not think our government should go out of its way to make that kind of thing particularly straightforward. Would you also support a law mandating a $300 fine for leaving your cell phone provider in less than two years, to save carriers the trouble of writing that into a contract themselves?
Roger, patents have to do with what you build or do and are independent of any kind of commercial activity. For example, the PCR technique of isolating and amplifying DNA, which is so central to modern molecular biology, was (is?) patented. This meant that until recently biologists had to pay for a license to do PCR experiments in their own labs (or garages), even if they were doing purely academic research without commercial value.
Yes, patents in theory apply to all Americans, but they are only enforced on commercial products. So those biologists had to pay license fees when they bought PCR equipment or accessories. If they were really not buying or selling anything, no one would bother them.
Roger, if the biology department of a major research university had announced that they would be making their own taq and thermocyclers to save on license fees, I am sure they would have been immediately sued. Otherwise they certainly would have done that!
My father (Vic Vyssotsky) worked at Bell Labs, and when working on Project Mac with IBM and MIT in the 60s, he came up with the idea of creating a layer of code between programs and the hardware to manage storage allocation. Basically, he invented the Operating System and the file. Think of what Bell Labs could have done if they had patented the OS and the file! A few years ago I asked Dad what it was like to have done something so fundamental. He responded that it was a problem that had to be solved for computers to move forward, and that if he hadn’t come up with a solution, someone else would have. I wish technolgy companies today had the same attitude.
@Roger: I asked you if future harm counts. You said yes. I gave a hypothetical future example. Now you demand an ACTUAL future example? I don’t know what that would be: a future example that has already happened? It seems an odd standard for an overbroad patent, that it will be granted unless there are already infinging products before I apply for it.
Nor in my example do I assume people trade in their Apples for Pears, only that prospective purchasers have more choice. You asked after all for an example where consumers choices might be curtailed by the patent.
I hold in my hand an interesting patent application from one Haydn, F.J. claiming a patent on ‘Large scale orchestral works consisting of 4 movements ordered Fast, Slow, Fast, Fast the third using the minuet as a model and with the following possible key realtionships between the sections, called movements: Tonic, ….’
Paul G’s example of PCR is an exacllent example of the kind of ‘research’ patent Alex deplores. Is there any doubt Mullis would have done the work and published it without a patent, or that the patennt drives up the cost of any investigation using PCR?
It is worth noting that Alex does object to rewarding such discoverers as Mullis only that the patent system can be a bad way because it can inhibit invention and innovation, as with the PCR patent.
Ken B needs to proof-read. He should have said ‘Alex does NOT object …” Insert well-earned ‘vitriolic’ put-down here.
Does anyone seriously believe that the progress in IT that happened in last 15 years wouldn’t have happened if there were no patents?
The vast majority of software patents is just a result of solving a problem; anyone solving a problem would come up with such solution. Now if you come to patents that seem ‘very hard to tackle ‘ – where are they?
MP3 – looks like an interesting and very hard to get idea; except that somebody sat and developed ‘in a garage’ Ogg Vorbis.
RSA? Well, except that I think there are some different ways to tackle the problem… And..are you sure nobody would come up with the same algorithm in the last 20 years when it is progressively being used?
I find it very unpersuasive that not having a patent system would have detrimental effect…
Steve,
Not that I necessarily disagree with you, but you haven’t come close to making your case. You stated “In other words, anything you’d recognize as a smartphone seems to be covered”, but all you did was quote the abstract (which is just a summary to aid search purposes), and has negligible, if any, practical legal effect.
The “coverage” of the patent, on the other hand, is defined by the claims (which you did not quote) as informed by the entirety of the specification (of which the abstract that you quoted is necessarily a very very limited high-level summary).
Your “seems to be” is doing way too much heavy lifting.
As the MPEP makes clear, the abstract is necessarily limited to 150 words: http://www.uspto.gov/web/offices/pac/mpep/documents/0600_608_01_b.htm
The disclosure and the specification are not the scope of the patent, and the abstract is nothing more than an exceedingly brief summary of that disclosure and specification. On the other hand, the scope of the patent is set forth in the claims (as informed by the specification), which, like the specification, you’ve neither linked to nor addressed.
By all means, if you think this is a bad patent, go ahead and show that — analyze the improvement in light of the prior art, show how the claims were either anticipated or obvious to one of ordinary skill in the art.
But trying to show that a patent is improperly granted by merely quoting the abstract is even more absurd than you consider the patent to be. It’s like somebody claiming that one of your economics papers is absurd by addressing only its abstract, without reading or looking into the publications you cite, considering the actual developed arguments you make, or engaging with any of the examples or illustrations of your points.
I have the impression this patent could be invalidated by prior-art: I checked with a Sony Ericsson w200a phone, apparently released on Q2 2007 (http://www.mobiledia.com/phones/sonyericsson/w200a.html).
As it turns out, while in a call, I can press a “More” button and then select a “Main Menu” option. That will allow me to navigate through all available applications in the phone (like contacts, games, calendar, etc) while still maintaining the call. Pressing a “back” button repeatedly will ultimately return me to the “phone app”.
My only doubt is that I’m not sure which is the critical filing date for the patent for considering prior art. Checking at http://patents.com/us-8082523.html, I see a January 6, 2008 date for the 11/969,908 application number; but then, just below it, I also see Jun., 2007 for application 60937993, and I believe prior art should date from 1 year before those filing dates.
Loweeel: I did not in fact take an unequivocal stand on this; I invited discussion. But your main point—that the abstract is not the patent—is a fair one. Thanks for keeping me honest.
Alan Marchant is right – patent is easily designed around.
One example is unintentionally provided by Paulo Sequeira. The patent claim requires a special “switching” icon (most likely “return to call” or similar) within each application, present only when a call is active. Simply providing the ability to “back out” of each application while a call is active would likely not infringe the patent.
You could even include in each application a “switch to phone” icon active whether or not you are currently in a call, or use an always-present “task manager” icon in each app.
There are plenty of overbroad patents out there, rail against them all you like, but this is not one of them. The problem is that anyone who has ever used a cell phone believes they are capable of performing patent analysis.
I haven’t checked out the relevant priority documents, but prior art should probably be at latest June 2007 and preferably June 2006.