Doing the patent dance

When it comes to patents, court cases, and intellectual property rights, it seems there are quite a few experts who have come to the fore recently. Of course, there are two technology heavyweights to thank for this. Apple recently won its patent infringement case against Samsung after the former argued the latter copied a number of features found in its hardware and software.

Words like pot, kettle, and black immediately spring to mind.

Muggie van Staden is MD of Obsidian Systems.

This could potentially result in Samsung having to pay Apple more than $1 billion in damages and having to remove some of its 'offending' products from the marketplace. Obviously, Apple is happy and Samsung is a bit upset, saying this will lead to less innovation, competition, and choice for consumers.

But, can there even be a winner when this field of law makes even less sense than advanced metallurgy would have done in the Stone Age?

Let's look at some of the offending patents.

Consider Design Patent 087 and Design Patent 677 regarding the ornamental design of the iPhone white colour and the iPhone black colour respectively. And throw in Design Patent 889 regarding the iPad design for good measure. While Apple successfully won the patents regarding the iPhone design, the jury ruled that when it comes to tablets, the Samsung devices did not infringe on any patents. Although I reckon Moses would probably have had a thing or two to say on Apple patenting the design of a tablet that is flat with rounded corners.

The point is that when companies can get away with patenting the shape and design of a phone, then people should sit up and take notice. After all, put five smartphones - in a similar price category from different manufacturers - next to one another, and look for similarities. Pretty soon, Apple might even start claiming patent rights on the design of a laptop.

Then there is Utility Patent 381 that refers to the rubber-band effect when a page 'bounces' when a user scrolls to the bottom. The jury found that Samsung violated this patent on 21 of its phone models. The funny thing is that there are two previously released devices to the iPhone that featured the same technology that Apple received a patent for. Words like pot, kettle, and black immediately spring to mind.

After all, one of the more famous technology industry stories is how, in the early 80s, Apple was 'inspired' by the Xerox Star, which showed little drawings of things (let's call them icons) on a screen that did various things when a pointer was moved over them. Funnily enough, this pointer relied on a device (not a keyboard) to move it around on-screen. Even more strangely is that when a user clicked on the icon with the device (let's call it a mouse), the computer started running programmes.

But let's be fair to Apple. It is only playing the game as it was designed to be played. Yet, one cannot help but feel that certain things should not be patentable and should not be enforced by law for the greater good of innovation and competition. As it stands, there is the letter of the law, the spirit of the law, and then those who have the most money and biggest pile of patents who win.

All of this is quite novel to the open source world. Here, if someone has a great idea, they put it out there for everybody to see, get inspired by it, and even make it better. It is not a case of spending a fortune to secure a patent just to avoid a competitor from stealing, copying, getting inspired by it. Time will tell what impact the Apple and Samsung case will have on the industry. But, now is a good a time as any to start pushing open source practices and doing things right for a change.