I do not think it means what you think it means

A few years ago an acquaintance discovered that a piece of artwork she had drawn, scanned, and posted on her own website had been taken by a clothing company and used on t-shirts, which they sold gazillions of. She spent a lot of time trying get them to stop using her art. She doubted she’d ever get them to pay her for it, she mostly wanted them to stop using her art without her permission.

She called them “thieves” and “lazy.” And she was correct.

So I was amused recently when some of her supporters called Apple a “patent troll” for suing Samsung over design theft.

“But wait,” you say, “It’s not the same thing! Apple is going after them just because they made something with a touch screen! They’re not going after them for copying a specific piece of artwork!”

Have you read the 300-page Apple multi-touch patent? It isn’t 300 pages of padding, it is a precise description of the heuristics underlying how the machine can tell the difference between an intentional two-fingered gesture and an inadvertent thumb from the other hand touching the screen at the same time the user’s index finger on the primary hand is touching the screen. Among a lot of other things. So that particular claim is not “it’s a screen that you touch” but rather, “it’s a touch screen which uses these precise algorithms in concert with these precise physical components to control the device in these precise ways.”

Whether or not algorithms and other software processes ought to be patentable (and there are valid arguments that they oughtn’t), under the current system they are. And if a touch device uses those precise algorithms and those precise components in that precise way, then it is copying, not inadvertently doing something superficially similar.

Some of the claims that Apple asserted in the lawsuit were much more of a stretch than that, and it appears that between the judge and the jury those were not upheld.

My other gripe is the now rampant misuse of the term “patent troll.” A patent troll is a person or “company” which does not produce any products of any sort, let alone anything that actually uses the patent under question. Instead, its sole economic activity is to sue people and companies who are making products which may or may not violate the patent, in order to force a financial settlement.

A recent classic example is a company that holds a patent, purchased many years ago from an “inventor” for an enhancement to a fax machine which would allow the owner of the fax machine to press a single button on the fax to send a message to the manufacturer in order to, among other things, purchase supplies for the machine. The inventor never built such a fax machine. He totally failed to convince any fax machine manufacturers to add such a feature to their machines.

Now a holding company which exists solely to sue people over patent violations has been using the patent to go after people who put a virtual button into their apps or web pages that users can click in order to buy stuff. The purpose of the lawsuits by this company is not to prevent people for having buttons you click to buy stuff, nor is the purpose to get people to think of some new way to buy stuff. The sole purpose of the lawsuit is to scare at least some of the people and companies to hand over money to make the lawsuit go away.

Apple did ask for money. They didn’t get as much as they asked for. And the amount they were awarded (we will see if they actually get even that much; even before an appeals process goes through, the trial judge may reduce the amount), while it would be enough to set you or me up for a life of incredible luxury, is actually not that big of a deal to either Samsung or Apple.

And the outcome Apple really wanted was accomplished long before the lawsuit went to the jury. The products the jury found in violation of the patents the jury upheld are almost all obsolete products. Once it was clear Apple was willing to sue, Samsung started changing the design of devices so it was less likely consumers would confuse their product with Apple’s.

And in the long run, I think that’s a good thing. No one is going to invent something better than what is currently on the market if everyone keeps copying each other. And while I think we have a lot of cool tools and toys to play with now—I love living in the future!—I want stuff that’s even cooler!

At least 20% cooler, if you please.

1 thought on “I do not think it means what you think it means

  1. I admit when I first heard the news my natural reaction was of frustration. I’m biased; I don’t like Apple and maybe even used the patent troll term yesterday myself. It was thrown about in anger, like one let down by another’s behavior might throw an imperfectly disparaging comment in their direction.

    My axe to grind is the rumor mill that is part of Apples marketing seems to always get fed right around the time a new product emergest that might have a possibility of impacting Apple’s sales. Because of Apples rep for selling high quality stuff (they do), people tend to get nervous of commitment when they think their “dream device” is right around the corner. Since I work on commission selling competing devices, this rumor mill has personally cost me thousands of dollars. This loss was NOT to a better product, that’d be fair competition. The loss was to the “dream” of a better product. It’s like watching a friend not date perfectly good women because he dreams he’ll never have a chance with some movie star if he’s involved if he ever runs into said star. It drives me crazy!

    So, yeah, Apples marketing is top notch. 🙂

    Any company would attempt to gain and hold the sort of exclusivity that keeps others from competing against them. That fault is not Apples. The issue is that our patent laws do not work well for high-tech devices and that industry in general.

    This is one of the few times I’ll stand up and say “this is a job for government!” Not to get involved in Apple and Samsungs dispute, outside of the judicial system, but to take action on intellectual property law being more effective at stifling an industry than a protecting an innovator.

    Will they? I doubt it. Status quo, and the lobbyists still have money to give out. But that’s a whole other subject.

    So fontfolly, I apologize if I lobbed this word at Apple yesterday like some disappointed Sweetie Belle emerging from a bush with “COME ON!” on her lips. My frustration should be directed elsewhere.

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