Forging The Future 7/30/10 — 11:10 UTC

On March 2nd, Apple turned further to the Dark Side and initiated patent litigation against HTC based on an array of sweeping patents (like recognizing phone numbers and unlocking things by visually sliding a graphic of a latch) that could potentially impact web site interfaces and operating systems, casting a dark pall over non-Apple phones, web tablets, and any number of innovative technologies. Given Apple’s own origins lifting the research of Xerox PARC, this is particularly troubling.

Apple already enjoys a tremendous marketing lead with its iPhone and has a strong reputation for creating new functionality. But it also has developed an unquenchable thirst for control that leads it to consistently refuse to meet standing consumer needs in an attempt to insure that its customers are never quite satisfied by always leaving something important out. To sell more phones, it leaves out a built-in microphone and camera from its Touch devices that would let their WiFi capabilities moot the need for a cell contract. To boost App store sales, it denies users the ability to directly install third party software. To insure that developers commit to its native API’s so they can’t port their Apps to other platforms, it prohibits the installation of interpreters for programming languages on its phones.

All of these things you can’t do as a matter of business policy on the Apple platform led to Droid’s successful Droid Does marketing campaign. This is one thing the new Apple can’t bear, real consumer choice.

So rather than relax its strangle hold on its customers so they will freely choose its products and services, Apple has turned to the very dark side tactics of sowing Fear, Uncertainty, and Doubt to attack the Android platform. It isn’t the copying of some specific technology that truly scares Apple, it is the fact that Google’s Android Platform is more Open than its own and has enough technical appeal and interface sophistication to hold its own in the market.

In the glory days of Apple Computer, the company embraced competition through technological superiority as it strove to empower its End Users. When the company dropped “Computer” from its corporate name it renounced the promise of End User Computing and sough to transform its once independent customers into mindless drones dependent on Apple for their next entertainment fix.

This new Apple fears competition and evidences utter contempt for consumers as it now turns to the courts in an effort to stave off the loss of customer defections of its own making.

If you hold Apple Stock, now would be a good time to make it known to management that trying to stifle innovation and consumer choice with IP litigation hurts the entire industry, could lead to a flurry of patent litigation by making it socially acceptable for other companies to go after Apple, and threatens to destroy the long term value of your investment. If you were thinking of buying Apple products, hold off and let Apple know that you don’t appreciate its strong handed attempt to gain a monopoly over mobiles devices.

[Obligatory FTC Disclaimer: The Institute and some of its officers, directors, staff & volunteers have made use of free Google Services which might in theory bias us in favor of positions that would advance Google's interests, which in this case run in concert with those of HTC which is being sued by Apple. Some of us also use Apple products and services. We have not canvased everyone to determine whether any of us directly or indirectly own stock in any of these companies, but that possibility no doubt exists. So the reader should assume that potential relationships exist and consider this to be a notice thereof.

That said, our writing is solely motivated by our desire to advocate for the interests of End Users like you and we only include this notice because it is required by the FTC to avoid the risk of running afoul of their regulations and becoming subject to substantial fines. If you are a blogger and have ever received anything of value or have any kind of theoretical relationship with an entity you are blogging about, you should consult with a lawyer to determine your disclaimer obligations under these new rules.]

This morning the web is awash with worry over the US Patent and Trademark Office’s decision to grant a patent on presenting news feeds about activities in social networks based on an application first filed by Facebook in 2006.

This is another case of taking a very generic idea with utterly no novel engineering behind it and turning it into a patentable innovation by attaching it to a subject domain. This is almost the same recipe that cooks up most business method patents.

Take a generic idea like reporting something of interest, qualify it slightly, throw in some generic computing steps like turning references to resources into hypertext links to them, sorting items, or displaying some content, and be the first to the patent office with a permutation that hasn’t been patented yet.

In this case, “generate a news feed”, “attach informational links”, “attach links that let you perform some actions with the current item”, “limit who sees what (i.e. don’t display info about people the user doesn’t know)”, “sort the news items”, and finally “display them”. This sort of “innovation” is totally generic and obvious in that each step could apply to any kind of information stored on a computer and nowhere in such a patent does anyone learn anything they wouldn’t have thought of doing themselves if tasked with solving the same problem. In short, all that is being rewarded is paying the patent application fees to enrich the government.

Indeed, the innovation here is so trivial that no real programmer with an ounce of integrity would consider it worthy of patent protection or worth the time and expense of pursuing the same. Solo programmers and early stage startups simply don’t have the money to play the patent game. Moreover, a patent concept as broad as this would seem so unlikely to be granted before the fact that a developer would be highly unlikely to be able to raise the funds from outside investors to seek it.

Granting Software Patents on sweeping concepts only empowers big companies with deep pockets who can fire this sort of low quality buckshot at the PTO in high volume knowing that a few of their applications will slip through giving them the power to extract royalties from big competitors and to stifle the formation of smaller ones. Every time a patent like this is granted it becomes much harder for true innovators to get backing and bring real innovation to the market. The cost and threat of litigation forces them to sell out to a big player, to shutter their doors if challenged, or more likely to not even bother trying in the first place.

Unfortunately, we will never know how many jobs have been lost or never created because our legal culture falsely assumes that software innovation would not take place but for the existence of patent monopolies. Sadly, since small scale innovators can’t afford to lobby congress as effectively as the mega-corporations that benefit from the current system, patent reform is unlikely in the short run.

That leaves the onus on End Users like you to use your market power en-mass to punish companies that use sweeping software patents unethically. While you can’t do anything to influence Patent Trolls, you can bring pressure to bear on real companies that depend on your patronage as part of their business models.

Facebook is such a company and we trust that it will most likely do the right thing and commit this patent to the Public Domain or promise to only use it defensively if confronted by similar claims. Indeed, it was most likely fear of just his sort of patent being granted to someone else that drove Facebook’s business decision to pursue it in the first place.

However, if Facebook were to try to employ it offensively against innovative competitors, it would then fall on its customers to take action by abandoning its platform in large enough numbers to force it to rethink its course of action. Since the management team at Facebook is not stupid, it is highly probable that they will do the right thing!

Remember, the best defense against the abuse of Software and Business Method Patents is a vigilant global community of End Users willing to put up with a little inconvenience should the need arise to insure that sleazy business behavior is punished in the marketplace since that is the only way to make ethical business behavior the only profitable way to do business.