Patently Stupid

Apple’s multitouch lawsuit is both dumb and dangerous.

Steve Jobs

When Apple CEO Steve Jobs unveiled the iPhone at 2007’s Macworld conference, he began by describing the device’s groundbreaking user interface. “We have invented a new technology called ‘multi-touch’ which is phenomenal,” Jobs said. “It works like magic.” In his superlative-laden way, Jobs explained that Apple’s new touch screen was so sensitive that you could use it without a stylus, so smart that it could detect and ignore unintended touches, so elegant that it could understand elaborate multifinger gestures. And then he added five words to emphasize how special and unique this multitouch technology was: “Boy, have we patented it!”

Now Jobs is making good on that implied threat. This week, Apple filed a lawsuit against the Taiwanese electronics company HTC, alleging that HTC’s devices infringe on 20 Apple patents related to the iPhone. Because many of HTC’s phones run Google’s Android operating system—that includes the Google Nexus One, which HTC manufactures for the search company—Apple’s suit is best read as a proxy war against Google. Apple is suing HTC because suing Google would be more expensive and worse for public relations. Going after HTC achieves the same result without all the awkwardness of suing the tech world’s 800-pound gorilla.

But this isn’t just about Apple vs. Google. This lawsuit could apply to just about every one of Apple’s tech rivals, including Microsoft, Motorola, Palm, and Research in Motion, the BlackBerry’s manufacturer. In the three years since the advent of the iPhone, smartphone makers have moved aggressively to mimic the device. Every mobile company now makes multitouch phones, and with all the tablets and e-readers hitting the market, touch screens are becoming ubiquitous. You wouldn’t be going out on a limb to predict that touch-screen devices will play a major role in the future of computing. With this lawsuit, Apple is standing in the way of that future.

It’s a dangerous strategy. Patent lawsuits take years to wind through the courts, but when this one is finished, no good will have come from it. Apple’s move is terrible for consumers and businesses that rely on smartphones, it’s bad for mobile-software developers, and it’s obviously not great for Apple’s competitors. The suit can’t do much to help Apple, either, especially if it sparks an industrywide patent war. Apple’s competitors also hold a wide portfolio of mobile-device patents, and I’m sure that they all have their legal departments working overtime to search for any claims that the iPhone and iPad might be violating. Apple’s move thus casts a cloud of uncertainty over the entire industry: Should you buy an Android phone or build apps for the Palm OS if a judge might one day declare those systems illegal?

You might argue that none of this is Apple’s problem—if it holds patents covering the multitouch interface, why shouldn’t it protect its invention? That’s pretty much how Jobs sees it: “We can sit by and watch competitors steal our patented inventions, or we can do something about it,” he said in a statement. “We’ve decided to do something about it. We think competition is healthy, but competitors should create their own original technology, not steal ours.”

But Jobs’ position ignores a deeper problem, one that many in the industry have long lamented: The system for patenting software is broken. As numerous researchers have pointed out, the U.S. Patent and Trademark Office grants software patents with alarming ease. As a consequence, every major tech company spends a fortune applying for, defending, and licensing patents with no purpose other than to keep rival firms’ patent lawyers at bay. In many cases, patents covering software rest on dubious legal and philosophical grounds.

The multitouch patents are a prime example. Neither Apple nor any other company should be able to claim ownership of such a basic and far-ranging tech concept. I’m not predicting that Apple will lose its suit—it may well win, or force a favorable settlement. But that’s exactly the problem: The fact that a company can hold up the entire industry over something as fundamental as an improved user interface is the best argument yet that the patent system is in desperate need of reform.

To see why Apple’s claims are so dangerous, it helps to understand the basic purpose of patent law. Patents are meant to protect inventions, not ideas. This is a crucial distinction: Two inventors may have the same idea—Hey, I just came up with an automatic bagel maker!—but if one of them uses ropes and pulleys to make bagels while the other uses space-age robotics, they’ve got two different inventions. The underlying idea—a machine to make bagels—can’t be protected under the law. For this reason, many countries, including the United States, prohibit the patenting of algorithms—the purely intellectual set of instructions for solving a problem. That’s because an algorithm is basically an idea, and patenting ideas leads to absurd results. If I patent the formula for an easy way to calculate restaurant tips (just double the sales tax), does that mean you’ve violated my patent just by doing it in your head?

Following this distinction, courts long frowned on software patents—computer programs, after all, are just algorithms. But as researchers Bronwyn Hall and Rosemarie Ham Ziedonis explain (PDF), a series of decisions beginning in the early 1980s relaxed that standard, making software patents both easier to obtain and to enforce. Applying for patents quickly became a primary pursuit of all tech companies, and large tech firms found the patent office amenable to their requests. More and more patents these days look like claims on general concepts, not well-thought-out inventions; companies can now patent not only what they’ve built or are in the process of building, but things that they’ve thought of building, even if others have thought of the exact same thing. (See, for instance, Amazon’s ridiculous patent of 1-Click online shopping.)

This gets to the essential problem with patents on user-interface concepts like multitouch. Apple came up with a device that translates what you do with your fingers to action on the screen. It rightly claims ownership over the implementation of that idea—the specific way in which the iPhone marries software and hardware to do what it does so well. But Apple should have no right to patent the idea of a multitouch interface; if other companies come up with competing implementations of the same idea, they ought to be free to market them. As John Gruber points out, user interface concepts are just that—concepts. Just as there’s more than one way to make a bagel, abstract ideas like multitouch can be implemented in a number of ways.

What’s more, it’s clear that Apple did not come up with the concept of multitouch. Jeff Han of the New York University Media Research Lab showed off a multitouch display at the TED Conference early in 2006, long before anyone outside Apple had seen the iPhone. Tom Cruise showed us one in Minority Report in 2002. And Microsoft was working on its multitouch Surface computer at the same time Apple was working on the iPhone; indeed, Microsoft was awarded a patent in May 2006 for a device that “may be configured to receive multiple concurrent touchscreen contacts.” That was months before Apple won its first multitouch patents.

The obvious problem with allowing firms to claim ownership over concepts is that it limits competition. Imagine if only one Web browser was legally allowed to use a multitab interface. Would browsers be as good as they are today, when every company can compete over the best, fastest, most-intuitive implementation of tabbed browsing? Probably not.

Indeed, several studies suggest that the ease with which software patents are now granted is correlated with a decrease in innovation. James Bessen and Robert Hunt found (PDF) that as firms spend more on patents, they tend to spend less on research and development. This ratio is skewed even more by the presence of so-called patent trolls like Intellectual Ventures, a firm founded by former Microsoft executive Nathan Myhrvold with the express purpose of amassing patents, not building things. In 2005, Research in Motion was nearly forced to shut down BlackBerry service as a result of a lawsuit by NTP, a similar patent-holding firm.

And that’s the worst part of the Apple suit: It’s a distraction. Apple and the rest of the industry should be coming up with the next great phones, not litigating over the current models. “Stealing” ideas has always been a core part of the way the tech industry moves forward. Apple didn’t come up with the idea of a digital music player; it won that business by taking the basic concept, then building a better version than anyone else. (In 2006, Apple paid a $100 million settlement to Creative over allegations that it “stole” that company’s music patents.) And when other companies came along to try to outdo Apple, Steve Jobs kept inventing new things—smaller iPods, better-looking iPods, ever-cheaper iPods.

Jobs should be doing the same thing in the phone business. Come on, Apple: Let your engineers fight the tech battles, not lawyers.

Become a fan of Farhad Manjoo on Facebook.