It looks like I spoke too soon about the wealth of choices available in the smartphone market. Even as I was typing up those mis-guided paragraphs, Apple attorneys were hard at work to try to limit those choices, firing their first shot across the bow of Android by way of a lawsuit against prominent Taiwanese hardware manufacturer HTC.
So far I haven't run across anyone defending Apple in this matter. The prevailing view amongst the punditocracy, a view I happen to generally share, seems to be that patents are out of control and have become an agent with which to stifle innovation rather than support it: an effect almost entirely opposite that intended by their issuance. And indeed, if you look at the list of Apple patents the company claims HTC has violated (leaving aside, for the moment, the fact that HTC did not write the core Android software in which much of these features were implemented) you'll see many of the same tired, overly broad, obvious, or nonsensical "innovations" that so many software patents seem to cover these days. My favorite is #7,657,849, filed less than a month ago, covering unlocking a device by performing a gesture. How can you unlock any device without a gesture of some sort? But many of the others could be applied against almost any operating system, fixed or mobile, and illustrate the absurdity of saying that software processes should be patentable.
So it's relatively easy for the blogosphere to throw up a fuss and quiver over the harm to consumers and the chilling effects on competing handset manufacturers. The ability of cellular providers to remotely brick handsets at the mandate of a court injunction is indeed a frightening prospect. Those things may all even be true. But I will stick my neck out and say they are only half the story.
While in particular all these threats seem ridiculous and bullying, it may be helpful again to return to the intent of the patent system, which is to encourage innovation by allowing inventors of novel devices the sole benefit of those inventions for a span of some years. This, presumably, encourages the expenditure of resources on R&D by companies which, should their hard work be instantly replicable by anyone in the market at large, may not otherwise feel much incentive to come up with anything new under the sun.
I find little fault with that logic and if it is true that lawyers have turned patents into bludgeons and that software and process patents are much abused, it's also still true that some provision must be made to protect innovation, lest innovation become unprofitable. It's difficult to remember it now, with the iPhone a runaway success story, but Apple made one hell of a gamble coming out with a phone in the first place. Analysts predicted it would be a niche product, but bomb in the long run. It was seen by some as a desperate grab at a market where the company had no experience and no expertise, a new Newton that might pop up in trivia contests in the future. And those predictions were not necessarily unfounded; Apple didn't have any phone experience, and a poor track record with hand-held computing devices.
My question is, without the opportunity to dominate the market and recoup R&D expenses and make an obscene profit, would anyone have done what Apple did in the first place? It's easy to look back and say "yes" given all the other outfits flooding the market now, but would, or could, anyone other than Apple brought together all the small touches that make today's smartphones what they are? It might have needed someone from outside the industry to make it happen… but without some guaranty of exclusivity, who could risk such a thing?
Bad as the patent system may be, it might be the only recourse available for Apple to justify the invention of such a device. There's no way, at least so far as I know, to patent the totality of a thing like that, and anyway such a patent must necessarily be excessively broad. But I find it hard to say that Apple should not be rewarded with some measure of exclusivity for creating this genre of smartphone. Twenty years, the standard term, seems too long in this day and age, but say five years, perhaps; certainly a killer product with a lock on the market can make its creation worthwhile in such a time span.
If there is something that I can absolutely agree with the critics on in this case, it is the need for reform in the patent system. But in the remedies, let's not lose sight of the original malady the process was designed to cure.