Analysis Relax, everyone. While the patent system is far from perfect, a remarkably common-sense jury decision last week in the Apple-Samsung trial has clarified that patents are the "lifeblood of business", as inventor James Dyson calls it.
Putting powerful short-term legal protections under inventions is overwhelmingly more convincing than any mooted alternative. We're all richer for it. And the verdict has also been good news in an unexpected way: it's a fillip for the jury system too. Much to the distress of intellectual property "experts", this is a small victory for democracy over technocracy, and against the administration of justice by self-selecting elites.
When ordinary citizens gather to assess an intellectual property decision, they don't let us down. The clarity of the jury foreman's thinking here is particularly impressive. Velvin Hogan, a 67-year-old engineer, told the San Jose Mercury that, essentially, Samsung had nobody to blame but itself.
Hogan also demonstrated in interviews what appeared to be a nuanced view. He asserted that the jury was keenly aware of the potential for the system to stifle innovation – "Apple can't be a monopoly," Hogan pointed out – and for dubious patents to get past officials. The jury also showed its rejection of dogmatism by throwing out the claim that Apple's most-cherished design patent had been infringed, and was most impressive on Apple's iPad claims. It effectively rejected any claims for compensation. And Hogan thought all the expert witnesses were paid stooges, and gave little weight to their evidence.
So Hogan is nobody's fool. He got to the core of the dispute.
"If this were my patent," asked Hogan, "could I defend it?"
It's really as simple as that. Hogan's analysis cuts away much of the self-interested rhetoric about the supposedly "broken" patent system thrown up by policy wonks, academics, interest groups and corporations - all bent on fiddling the system to their benefit. By finding against Samsung, the jury threw their dogmatism into sharp relief. The role of the panel is not, as activists wish, to rewrite the law nor "send a message". It's not a political convention. The jury must interpret the law from first principles. This job has been performed with impressive common sense.
So while the "patent system is broken!" and "intellectual property is evil!" crowds have been out this weekend, they've been conducting a rather a muted campaign. As ever with activists, the focus is on process or the fairness of the damages. There's typically a squeamishness about justice being done: some say Apple is not particularly averse to pinching ideas itself, pointing to Alt-Tab switching, which became Command-Tab switching in Mac OS, and "Android-alike" notifications. But this is moot, for two wrongs don't make a right. Activists will focus on anything rather than the moral case underpinning the jury's decision. If we start with that, it becomes clear Samsung has nobody to blame for its predicament except itself.
Nobody put a metaphorical gun to Samsung's head and required the South Korean giant to look to Apple's user interface as a template – as the jury found – for designing its own. A UI, let's remember, is simply part of a means to an end, and Samsung could have examined what users are actually doing - getting alerts, getting status updates, looking for things near them - and found a better way to do them.
Apple's iOS UI today is simplistic and it is creaking under the weight of the workflow required of it, and this leaves lots of scope for improvement. Others have seized the opportunity. Microsoft is one. The Windows Phone Not-Metro UI – built around hubs and live tiles – may be flawed, but it demonstrates the merit of thinking about user requirements rather than simply trying to replicate the experience. RIM has also tried to focus on the user interface as a workflow in BlackBerry 10. When Not-Metro works, you wonder: "Why would anyone copy to the iPhone? It's years behind."
Whether or not it was actually "copying", as the jury found, Samsung could have created a branded, distinctive UI, inventing its own unique gestures, design grammar and decoration based on a little bit of original thinking. But it appeared to have no new insight into the market's requirements. In addition, Samsung could even have decided to compete higher up the value chain - with bundling deals, or unique content deals, or unique communications offerings - leaving the vanilla Android UI unaltered. There are many ways to compete.
Now bear this in mind when considering the 132-page document, leaked to Scribd, that highlights the difficulties posed by the Samsung device user interface compared to Apple's iOS.
Where does this leave the "patent system is broken" crowd? They don't have an economic case to advance - for the current system, even with all of its flaws, makes us richer. Intellectual property is about all the West has left on which to base its future prosperity - I suppose we could buy and sell each other's houses to each other, or create other asset bubbles, but these go pop. So intellectual property activists are left puffing and panting at the margins, and managing, quite successfully, to make themselves look incredibly silly.
Who could be against patents?
The arguments against the patent system come from three corners: first, there are organisations who directly benefit from weaker intellectual property. Some are large corporations with networks of influence, for whom piggy-backing onto other people's inventiveness is simply good business. It's a rational, if extremely cynical decision to make.
Then there's the armchair activists, conducting the "politics by other means". This camp is more voluble with its complaints than it is about solutions. Here, the urgency to dismantle the system is urgent; assertions about future growth are typically deprecated or completely ignored. But that matters little to the agitators: intellectual property activism is where gesture politics went to die.
There's a third camp, which highlights many legitimate flaws in the system, and talks about how it can be improved. Many of this group's members are inventors.
Each day we're reminded of the costs and absurdities of the patent system. We hardly need reminding of this - or of the costs imposed by trolls. But the arguments advanced by intellectual property activists are becoming increasingly ludicrous, too.
On this website, Matt Asay argued that the costs of strong intellectual property outweigh the economic benefits by suggesting that innovation itself is an illusion. This idea was hatched in literary criticism classes in the 1960s. Nobody ever invents anything, and every idea is substantially borrowed, goes the argument. So we shouldn't grant a limited monopoly of exclusive rights for the economic exploitation of this non-existent creativity or innovation.
As Matt highlights, the argument is espoused by Kal Raustiala and Christopher Sprigman in a new book, The Knockoff Economy: How Imitation Sparks Innovation. This argues that in the fashion industry, where intellectual property protection is weak and theft is rampant, "innovation" flourishes. There are few more hostile places for the creator to be than the rag trade. Insisting humans are not creative but imitative is an argument that comes from a very, very dark place.
We've also heard some very anti-democratic arguments since the verdict. Merpel writing at the intellectual property lawyers' blog IPKat: "Does this jury verdict strongly argue against the case for jury trials?" asks the pseudonymous expert.
In other words, the Morlocks - you and me - are too dumb to understand the arguments being presented. Which means we can't be part of the justice process at all - justice shall be decided on our behalf by technocratic elites, the Eloi.
It could even be argued that some intellectual property lawyers are perhaps acting out of self-interest; a perpetual and never-ending conflict would greatly increase the demand for lawyers. Some might jump at the chance to replace citizen peer-review - a jury - with a panel of lawyers. How convenient!
Yet the jury clearly said: "You're not getting everything you want, Apple, and some of your damages are worth nothing. But Samsung, you copied when you didn't have to. Now bugger off."
It's beyond the scope of this article to discuss the many ways the patent system can be fixed. You know many of them already. Non-original claims are approved. Speculative lawsuits from trolls add uncertainty and costs to legitimate businesses. The little guy must be protected. But against these costs must be measured the benefits: the continuing flow of capital to innovation. It's worked incredibly well for us, and we haven't heard an economically coherent alternative to improving the system, as opposed to dismantling it. We'll know the patent system is "broken" when nobody invests in innovation any more.
China, as James Dyson points out, devalues the patent system. It pays rewards for patent submissions, accepts a high number of dubious claims, and yet fails to police its designs. At least the San Jose jury got one of these things spot on. ®