

This Apple-HTC Patent Thing - lid
http://daringfireball.net/2010/03/this_apple_htc_patent_thing

======
Terretta
Gruber, almost alone in a sea of reporting, manages to mention Apple's action
here may be related to Nokia's patent suit against Apple.

So rewind a bit, to put this in context:

\- Apple accuses HTC of iPhone tech theft (2 March 2010)

\- Kodak prompts ITC to consider iPhone ban (18 February 2010)

\- Motorola seeks ban on US BlackBerries (26 January 2010)

\- Nokia sues Apple, says iPhone infringes ten patents (22 October 2009)

One test for patents' validity is whether the company is enforcing them. With
Kodak, Sony, Nokia, Motorola, RIM, and others suing one another as a business-
as-usual step in licensing negotiations, the value of Apple's defensive patent
portfolio at the licensing negotiation table depends in part on Apple's
perceived willingness to stand behind the validity of their portfolio and
enforce their patents.

I'd suppose this is a signal to the marketplace not that competitors should
create their own original technology, but that if they want to copy, they
should license or trade.

~~~
DougBTX
Could you point to a reference of patent validity tests which includes
enforcement? The three tests, "utility, novelty, and non-obviousness", seem to
be the standard ones.

Perhaps you are confusing patent law with trademark law, which does require
enforcement?

~~~
Terretta
Sorry, I should have clarified that. I almost mentioned trademark law to
compare and contrast. No, you don't lose the patent by not enforcing it. But
you can lose the value of the patent both at the negotiating table and in the
courts if there's a belief you won't enforce it or a belief you suspect it's
unenforceable (e.g., if you seem to worry by using it aggressively, you could
have it challenged, and lose it).

First, as alluded to in the article, note the word "need":

> _"Perhaps it’s a by-product of the suit Apple is engaged in against (and
> initiated by) Nokia. Apple’s counter-suit against Nokia involves some of the
> same patents at play here, and perhaps Apple’s lawyers have concluded that
> they need to enforce them against someone like HTC in order to use them in
> their counter-suit against Nokia."_

Second, to quote a non-neutral party, note the phrase "lax attitude":

> _"But neglecting stick licensing has two problems. First, it results in a
> loss of potential royalty and damages revenues from infringed patents.
> Second, it undermines carrot licensing of both infringed and noninfringed
> patents. If an industry perceives a lax attitude on the part of a university
> in enforcing its patents, it will think it can infringe with impunity. Under
> these circumstances, taking a license would be tantamount to making a
> charitable gift, which few in this economic climate are inclined to do."_
> \-- Alexander Poltorak of General Patent Corporation in
> [http://www.thefreelibrary.com/Thars+gold+in+Tham+thar+patent...](http://www.thefreelibrary.com/Thars+gold+in+Tham+thar+patents:+why+it+pays+to+protect+patent+...-a0209901861)

~~~
DougBTX
_But you can lose the value of the patent .. at the negotiating table_

True, it comes down to people and what they think you will do, not what you
can do.

------
jnoller
I have to admit; I find myself agreeing vehemently with Gruber, PG and
everyone else Gruber cited. Patents are typically defense weaponry. Your
attack weapons are moving fast, innovating and _implementing_ something.

Software patents _are_ broken, and Apple's decision to whip out it's massive
portfolio and start smacking people with it stinks of the "We want no phone
inspired by the iPhone's design to exist", which (in my mind) isn't what
patents are for in the first place - not to mention doing this is just, well,
wrong.

The iPhone's concept revolutionized the handheld industry - and sure, if
someone blatantly ripped it off, Apple does have a right to go after that
company - but the HTC phones are simply "inspired by" - they're not clones,
and while they have a lot of "features" which smack of the iphone, they're not
replicas.

I'm an avid Mac user, own an iPhone - and I'll probably buy an iPad (still),
but I for one want to see this suit fail horribly, or for Apple to withdraw
it.

~~~
dannyr
"I'm an avid Mac user, own an iPhone - and I'll probably buy an iPad (still),
but I for one want to see this suit fail horribly, or for Apple to withdraw
it."

Again, this is the reason why Apple will not change its ways. I wish people
who speak out against Apple would back up their words with action.

~~~
mark_h
It's painful, but I intend to -- I was planning on getting a new macbook pro
soon (not to mention a bigger ipod), but while I love their hardware I think
I've bought my last piece for some time now.

~~~
erik
I'm in the same situation. I was waiting for the next generation macbook pro,
but now I don't want to buy it.

Unfortunately, buying a windows laptop and supporting Microsoft doesn't appeal
to me either. Now I have to decide if I am unhappy enough with Apple to
justify the effort that a linux laptop would entail.

~~~
buster
You may want to reconsider Ubuntu (the new LTS release will come out end of
april). My apple owning colleagues were suprised how easy it is nowadays.
Granted, i customized it a lot to match exactly with my workflow, but i guess
i'm around 30% faster then i could be on a mac or windows, in terms of
organizing tasks, tracking information/time, getting different tasks done.

Also, if you haven't tried linux for some time: gnomes' apps integrate quite
well nowadays (contacts, mail, calendar on the desktop and if you use it, with
google mail/contacts/calendar). In conjunction with an android phone it makes
up for a pretty good and efficient working environment.

------
el_dot
_“We can sit by and watch competitors steal our patented inventions, or we can
do something about it. We’ve decided to do something about it,” said Steve
Jobs, Apple’s CEO. “We think competition is healthy, but competitors should
create their own original technology, not steal ours.”_

"Good artists copy. Great artists steal." said Steve Jobs, Apple's CEO.

You know this whole business of patents, and IP as a whole, is fundamentally
flawed in that there is no objective way to decide what is influence and what
is blatant copying/theft. The Justice route simply doesn't work. And because
patents are public documents, you are basically inviting competitors to
_modify_ your inventions.

I can think of two better ways to protect your IP. One is to do what Google
does and keep the knowledge of your best stuff to yourself. Up to now nobody
can crack their search black box. And two, keep innovating. If you do those 2
things in conjunction, I doubt you'd have to worry about people "stealing"
your IP.

 _I believe that it’s good business, in the long run, for a company’s acts of
aggression to take place in the market, not in the courts. My concern
regarding this litigation against HTC is that it looks like an act of
competitive aggression, not defense._

I completely agree. The sad part is it maybe too late for them to reverse
course.

~~~
GHFigs
_One is to do what Google does and keep the knowledge of your best stuff to
yourself._

Any suggestions on how to do that with a product as opposed to a service?

~~~
swombat
Google also sell search as a product - Enterprises can buy "google black
boxes" that index their corporate network and make it easier to find stuff
(supposedly... I haven't seen one at work yet, but the bar is pretty low,
considering how shitty most enterprise search engines are).

~~~
avinashv
These are basically rack-mounted boxes (the one I worked with was bright
yellow and looked pretty awesome) that quite literally are, under contract,
not allowed to be tampered with besides providing power and plugging in
cables.

They do work, though I wonder whether it is worth the cost. I can't recall
exactly, but I think it cost in the region of $10,000/yr. There's also a baby
version for significantly cheaper that indexes less docs.

~~~
jonknee
I'm sure their search technology is significantly different as well. A large
part of Google's success is being able to crawl well (their index is
incredibly fresh), sort through spam and SEO gaming and then raw speed over
many billions of documents. It's a lot easier to efficiently crawl and search
an intranet.

------
mrshoe
Has Amazon's enforcing of their one click patent really affected them
negatively? Certainly their customers have no idea about the whole ordeal.
Have great hackers refused to work there because of it? Would some percentage
of hackers refusing to work at a big company like Amazon really make a
difference to them? Somehow I doubt it...

I think the same is true of this HTC suit. I'm not sure why everyone is making
such a huge deal out of it. The patents probably won't hold up in court, or
some of them will and HTC will have to pay Apple N million dollars (like Adobe
vs. Macromedia). Everyone will forget about the suit within the year. The only
affected people (as one of the Tim Bray quotes suggests) will be the lawyers,
who collect their entropy-like tax.

Why would Apple do it if it's truly pointless, you ask? Well, Gruber has a few
solid bits of speculation in his penultimate paragraph, any of which might be
true, but only Apple knows the real reason.

~~~
mattmaroon
This is an apples to oranges comparison though because Amazon and Apple do
very different things. The thing is that unlike Amazon, Apple is primarily
selling a platform. To some real extent, hackers are their competitive edge.
(This is somewhat true of Amazon now that they're in cloud services I suppose,
but that's still a negligible part of their overall business and has been
great PR for them in the hacker community.)

The iPhone before the App Store was either a middling failure or a middling
success, depending on your viewpoint, but it certainly wasn't a slam dunk. It
was on track to undersell the 10 million projected handsets by the end of the
calendar year (about 18 months after launch) even after severe price cuts. See
this chart for unit counts:
[http://en.wikipedia.org/wiki/File:IPhone_sales_per_quarter_s...](http://en.wikipedia.org/wiki/File:IPhone_sales_per_quarter_simple.svg)

The green bar marks where apps came in. The app store is most, if not all, of
what made it the slam dunk it is today. It's hard to argue that people cared
that much about 3G back then, especially AT&T customers.

So alienate the people who make the apps, and you lose a lot of the reason for
customers to purchase an iPhone. Hence I'd argue that Apple's image among
developers is a lot more important to their success than Amazon's.

~~~
GHFigs
_It's hard to argue that people cared that much about 3G back then, especially
AT &T customers._

Many them weren't AT&T customers. That green bar also coincides with the
release of the iPhone in 22 countries (as opposed to only 6 for the original
model), expanding by another 48 by the end of the year.

[http://www.engadget.com/2008/06/09/the-lucky-22-countries-
re...](http://www.engadget.com/2008/06/09/the-lucky-22-countries-receiving-
iphone-3g-on-july-11th/)

~~~
mattmaroon
That's true, I wonder if what % of sales were international though?

------
netcan
_"Where I disagree with Jonathan is on what’s known as “business-method”
patents: one-click ordering, per-employee pricing. I’m having trouble seeing
the benefit to society in granting patents on something that could never
possibly be done secretly."_

That I think should always be the type of reasoning involved. It's not the
whole story (some things that couldn't be done in private would still stay
uninvited if patents didn't exist) I can't get my head around IP moralising.
The bottom line is that patents are intended to be an instrument to encourage
innovation to the benefit of society.

I really think there is no sane way out of all this. We tend to act as if
there must be some hard definition that will include all novel innovations
that wouldn't be worth developing in a patent-less world and exclude those
obvious derivative things that would be invented anyway and really need to be
freely built upon. There probably isn't such a definition. Even if we do find
some complex and inelegant way of mostly accomplishing that it wont last
forever.

Making a morality around _that_ seems absurd.

------
tsally
_I’m not opposed to idea of the patent system on general principle (as
Stallman, and many others, are)._

I'm not aware of RMS claiming that the patent system should be abolished for
all fields. I'd love to be corrected on this point, but it's my understanding
that Stallman is against software patents only. You can actually read
Stallman's own words on the subject in "Free Software, Free Society", Chapter
16. And yes, you can legally download the entire book for free.

<http://shop.fsf.org/product/free-software-free-society/>

~~~
kqr2
_I’m not opposed to idea of the patent system on general principle (as
Stallman, and many others, are)_

I think the context of that quote refers to software patents. In particular,
his two preceding Tim Bray quotes are clearly with regards to software
patents.

~~~
tsally
He's referring to the patent system in general. The context is pretty clear:

 _I’m not opposed to idea of the patent system on general principle (as
Stallman, and many others, are). And I think in many fields, the system has
and continues to work well.

But for software the system, in practice, is undeniably broken._

At the beginning of the second paragraph he makes a distinction between the
system in general and the system as it applies to software. Therefore, in the
first paragraph he was referring to the system in general. Maybe that's not
what the author meant, but that's what the words say.

------
kinetik
_"The iPhone introduced a new model. A true great leap forward in the state of
the art. Not a small screen that shows you things which you manipulate
indirectly using buttons and trackballs occupying half the device’s surface
area, but instead a touchscreen that occupies almost the entirety of the
surface area, showing things you manipulate directly."_

Nokia's N770 was close to this in 2005, and the N800 even closer by 2007. It
didn't have phone hardware, but it's not a great stretch for anyone to see
that phone hardware would be a useful addition at that point.

~~~
mbrubeck
I owned one of the first Nokia 770s through their open source developer
program, and it was a useful handheld computer but it was no iPhone.

iPhone features that the 770 anticipated well:

\- Full-featured web browser.

\- On-screen keyboard.

\- App development based on a full-featured desktop toolkit adapted to a
handheld screen.

Things that make it a strikingly different experience:

\- Not a touch interface. The resistive touch screen on the 770 was really
only usable with the stylus, and their interface designs reflected this. This
didn't really start changing until after the iPhone was released.

\- Not actually pocketable. To deliver a full-featured browser, Nokia used a
screen with almost twice the area of the iPhone's. They didn't figure out the
tricks Apple used to get a near-desktop-class web experience on a truly
pocketable screen.

\- UI conventions. The original Maemo tablets had a fairly desktop-like
interface. Menus, dialogs, a Windows-like task bar. Plenty of hardware
buttons. In contrast, the iPhone made a much cleaner break with previous UIs,
popularizing things like multitouch gestures and momentum scrolling.

~~~
mbreese
Not only that, but the web browser (Opera) on the 770 didn't really zoom well
at all. Nothing like Mobile Safari's double-tap zooming. It is actually quite
painful to use now. I occasionally break mine out but it is quickly replaced
with my iPhone. It really wasn't much of a mobile platform and quite
underpowered.

------
nopinsight
Why can't Apple continue to out-innovate Nexus One and Android instead of
suing them?

Reading from the overall situation and his quote, Steve Jobs might feel that
the current iPhone UI is 'perfect' as a whole. Apart from nitty-gritty
details, he does not see a way to drastically improve it. (That's why he chose
it for the iPad UI as well.) So he might figure that the only way to stop
competitors from getting too close is to sue them.

------
praptak
"Copying ideas is how progress is made. It’s copying implementations that is
wrong (and illegal)."

Distinction between ideas and implementations in software? Impossible. In my
opinion it is one of the reasons why software patents will always be broken.

~~~
tjogin
Tim Bray cites a pretty good example; compare and contrast one-click shopping
with PGP.

One is a broad concept that needs no further explanation in order to be
implemented by a seasoned developer — the other is a genius implementation
that isn't anywhere near self-explanatory.

Not saying software patents are sometimes good, just saying that there _can
be_ a difference between ideas and implementations in software.

------
sh1mmer
John pull together a number of ideas and commentary about software patents and
patent law from a variety of industry commentaries.

An interesting read.

------
ssn
With the iPhone Apple's innovation is in the implementation, not the
concept/idea. Can design be patented?

------
itistoday
For a sample of Gruber-pretentiousness, check out the last sentence (while
picturing him wearing a monocle):

 _I say it’s worrisome not because I think it’s evil, or foolish, or
unreasonable, but because it is unwise, shortsighted, and unnecessary._

Oh do say Gruber ol' lad! Your taste is so _precisely_ exquisite.

~~~
ugh
What’s wrong with that sentence?

~~~
tdavis
I believe he's trying to use "unnecessary" to mean Gruber finds it unnecessary
because Apple products are so superior and always will be. This is used to:

    
    
      1. Nullify all the arguments in the post because people
         imagined wearing monocles must be wrong.
      2. Point out the fact that it is wrong for anybody to hold
         an opinion on anything.

~~~
itistoday
That wasn't at all my meaning.

