Apple legal spat with Samsung highlights deficiencies in patent system

Human ingenuity is a marvellous thing, capable of solving all sorts of seemingly intractable challenges and problems. To illustrate the extent of our problem-solving abilities, here’s a fanciful thought experiment.

Considerable thought is being expended on methods to mine asteroids – those flying chunks of rock contain lots of precious metals – and with resources here on Earth being depleted in short order, it’s only a matter of time before it’s economically viable to obtain these metals from outer space.

So here’s my multi-billion-dollar idea: launching a vast, extremely strong net into space and positioning it so as to catch passing asteroids, snapping shut at the moment of impact so as to extract the valuable resources, which can then be returned to Earth in smaller vessels. It’s the Spider-Man method of asteroid acquisition, basically.

There are just a few technical details to iron out, admittedly, but the hard work now is filling out all those pesky patent forms and voila – I’m the asteroid-catching king. Before you question whether I could possibly get a patent for such an absurd scheme, bear in mind that patents have been awarded for bovine gas collection and unicorn creation, so absurdity is rarely a barrier for the granting of them.

Now to the obvious problems with my great fortune-guaranteeing flight of the imagination – sketching out science-fiction scenarios isn’t the same as invention, never mind innovation. Coming up with ideas is pretty easy – honing those ideas until they actually work is the hard part. It’s not like I’ve done any testing on rockets or high-tensile nets or anything.

And that gets to the heart of what’s going so very badly wrong with the patent system. Quite apart from the nightmare of software patents, or the dysfunction created by patent trolls, of the granting of overly broad patents, the entire system is predicated on a deceptive premise – it protects ideas, as if they are the rarest, most valuable part of the process of innovation, and that’s a very questionable assumption.

The gross deficiencies in the modern patent system are becoming ever more apparent, as highlighted by the interminable Apple-Samsung legal spat grinds on and on.

If you thought that case finished years ago with an emphatic victory for Apple and a bruising, $1 billion defeat for Samsung, you'd be only partially right – the two firms have been embroiled in dozens of lawsuits against each other in about 10 countries.

Right now, a second big trial in California is heaving along, with Apple seeking damages of $2 billion over five patents it alleges the Korean electronics giant infringed, including one covering the "slide to unlock" mechanism, which doesn't seem like the sort of thing that ought to be covered by a patent in the first place.

As Judge Lucy Koh put it, the case is just "one action in a worldwide constellation of litigation between the two companies". Apple has been obsessively pursuing Samsung for nearly 50 months now, like Ahab recklessly chasing the white whale, but there is no end in sight.

The US software developer Marco Arment, himself a tireless innovator, made an extremely valuable point recently. The patent system, he wrote, "reinforces the destructive but all-too-common fallacy that great ideas are rare, novel, unique, and immediately so valuable that simply having a great idea will suddenly cause somebody, somewhere, somehow to make you rich and you'll never have any problems again. We therefore value ideas above their execution, and that's exactly how the patent system is designed, despite history showing that good execution is far more important."

Arment’s point here can’t be overstated – Apple put vast amounts of ingenuity and effort into the creation of the iPhone, but the ideas they devised were only a small part of that device’s success. It was ultimately the execution on those ideas, from the hardware to the software, that made the iPhone so revolutionary.

As has often been pointed out, Apple is rarely the first firm in any given market, whether it be MP3 players or smartphones or tablet computers, but it tends to define the market, and derive huge profits, by its superior execution. The patent system just isn’t designed to protect that sort of execution.

Nobody would suggest that coming up with the idea for a story is the same as writing a book, and nobody thinks that merely humming out a new tune is the same as recording a song. And thus, the idea for a story or that hummed tune don’t deserve the same sort of protection as a finished book or song gets.

Which brings us back to my outer
space mining innovation. Some day, there most likely will be asteroid-mining companies (though they most likely won't be using giant nets, if I'm to be totally frank). Huge challenges such as extracting minerals from asteroids is absolutely the sort of Herculean task human ingenuity can tackle; sadly, it appears as if solving the mess of a patent system seems beyond us.