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Ye Too Olde Patent System?

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Samsung Galaxy S vs. Apple iPhone 3GSThe word “patent” was originally called “letters patent, which was a royal decree that gave exclusive rights to a person for a limited period of for an invention. In return, that person would be required to share that invention with the public. The goal was to support a kind of virtual co-creation, collaboration, or co-invention. You invent something, and someday I make it a better thing.

Patents were thought to make it more orderly and easier to disclosure the invention, or, more often (as in the case of a better mousetrap), innovations into the public domain. The thinking was simple: If inventors did not have the legal rights afforded by a patent, they might keep their inventions to themselves. No point giving my ideas away so someone else can make their fortune.

So the higher purpose of the patent was to makes the details of a new invention or innovation available to the public. Available for you to use (for a reasonable fee) and reinvent or recreate another patented invention or innovation. Spending time in the patent office gives credence to the idea that there is very little that is new under the sun. And that was the point. Patents were supposed to lead to co-creation, collaboration, or co-invention. You don’t need to be an Albert Einstein to understand the underlying concept.

That was the pre-digital idea anyway. The recent ginormous Apple vs. Samsung patent battle is shaping up to be the Battle Royal of patent fights, with Apple asking for more than $2.5 billion from Samsung. It also begs the question, “Is the patent an artifact of a previous age?”

This particular fight is about design, Apple’s core business strength. The claim is that the iPhone, with its gorgeous screen, no-pokey keyboard, and soft, rounded edges morphed the phone into the smartphone and once again and forever more changed the industry. Everyone after the iPhone was an iCopy.

“After iPhone was introduced, suddenly all the designs looked like black slabs with touch interfaces, no keyboards and lots of icons,” says Carl Howe, an analyst with Yankee Group. “This is officially World War III,” he added. “I think this is a case of whether the iPhone really, as Apple claims, changed the world in 2007.”

This is just one of many cases in the U.S. and around the world where one corporation is suing another over patent infringement. In every case, the company being sued pulls out a few of its own patents and sues right back. The question it raises, one that is especially poignant in this case, is whether the American patent system, based on the royal decree in the 17th century, originating here in the colonial period (1778–89) as part of the Articles of Confederation years, is enabling or disabling the co-creation and collaboration that innovation in the digital age demands.

Mark Lemley, professor at Stanford Law School, says the patent office isn’t always right. Grab your smartphone (any make or model) and stare for a moment at those rounded corners. He says:

That really is a patent of stunning breadth if you take seriously the idea, when you look at the diagram in the patent, that Apple gets to own a computer that’s shaped like a rectangle. Well, then designing around [that is] going to be awfully hard for Samsung or anybody else.

According to Lemley, it is a signal that something is upside down with the patent system, a system created to promote innovation.

Time for an overhaul? What would be a better patent for a patent?

Source: “Samsung Fight Among Many In Apple’s Patent War,” NPR, 07/30/12