Don't innovate, litigate!

Last week at work I sat in on a court hearing where Apple is trying to stop Samsung releasing its tablet PC computers in Australia. Samsung had hoped to have these on the shelves by today, but there's every possibility now that it could be the new year before they're released.

It doesn't matter much to me either way which way this case goes, but it was frankly a bit depressing sitting through what felt like an attempt to use the courts to ban a product to stop it competing with the iPad.

I'm no expert on patent law, but many of these big technology disputes of late seem to relate to companies' patents on processes rather than specific pieces of technology. I can see why that approach appeals to a maker of consumer products: after all, most of the individual components that make up an iPad are manufactured by Apple's suppliers, who presumably own the patents. Even with Apple's more integrated, customised approach to product design, a lot of what it's doing is assembling other people's components in a very whizzy design and marketing it cleverly. With that set-up, what can Apple claim copyright over, if not processes?

So we have the sort of case that was discussed last week, where Apple is asserting Samsung copied its method of swiping a touch-screen, and the way that the touch screen distinguishes between meaningful taps and accidental knocks.

It seems to me that these sorts of processes shouldn't really be patentable. Apple's not asserting that Samsung has pilfered technology from them, but that it shouldn't be allowed to make products that work in the same way as Apple's.

To me, this would be analagous to an early car company patenting not the internal combustion engine, but the petrol-powered motor vehicle. It would probably have resulted in vastly greater profits for the car owner, but there would probably be a lot fewer cars on the road. (No bad thing, you might say.)

The technology industry has so far always done very well at innovating to make products that people want. And traditionally there have been pretty low barriers to entry--Bill Gates knocking up his first operating system in his garage, etc.--which have meant that people with simple good ideas have a decent chance of turning them into marketable products.

These patent wars seem to change that. Indeed, they're distorting the very shape of the industry--the consensus on Google's recent takeover of Motorola's handset maker is that it was intended to provide Google with a patent shield, a treasure trove of intellectual property which it could throw at any competitor alleging infringements.

If that is the direction this is going, then future Steve Jobses won't just be able to piece together their first Apple Macs and build a company from nothing. Such a litigious environment will favour big companies that can hire armies of lawyers, not little start-ups with big ideas.

After all, the graphical user interface on which Apple's early success was built was first developed by Xerox; if they'd had a patent for "method of operating computer through visual representation" and sued Steve Jobs for infringement, would Apple ever have grown big enough to launch its own patent suits?