Who Decides? The Judge in the Copyright Patent Wars

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This is not a post about the judges that have ruled in copyright patent wars, especially those that have involved some major companies over the last six months. Rather, this post is about the innovator and consumer. Many believe that the tech world (like retail) is a consumer-driven market: the shopper, the buyer, is the one who dictates whether or not a smartphone or tablet feature (such as style and design) are standard or not. This would be the position of Google. As John Paczkowski explains Google’s position perfectly:


“Google’s view is that just as there are patents that are standards essential, there are also patents that are commercially essential – patents that cover features that are so popular as to have become ubiquitous. The latter are just as ripe for abuse as the former, and withholding them is just as harmful to consumers and the competitive marketplace. Viewed through that lens, multitouch technology or slide-to-unlock might be treated the same way as an industry standard patent on, say, a smartphone radio” (http://allthingsd.com/20120720/google-claims-popularity-has-made-some-apple-patents-de-facto-essentials/).


So far, I have covered standards-essential and non-standards-essential patents and distinguished the two for the reader. Paczkowski incorporates a new term into the debate that has yet to be introduced: commercial-essential patents. Commercial essential patents are not those that are part of standard features and components when it comes to innovation; rather, they are non-standards essential patents that appeal to a wide majority of the consumer base over time: “so popular as to have become ubiquitous.” For example, WiFiSync is an application that the Apple Corporation allegedly stole from Greg Hughes, a UK college student who has made thousands of dollars on the application at Cydia, the jailbreaker app hub. WiFiSync, thanks to Apple’s supposed theft, is the property of Apple (non-standards-essential patent). Let us imagine that over time, WiFiSync becomes popular; is it right to deprive world consumers of the feature, simply because it is not standards-essential? Apparently, Apple thinks so. Tim Cook:


“From our point of view, it’s important that Apple not be the developer for the world. We cannot take all of our energy and all of our care, and finish the painting, and have someone else put their [sic] name on it. We cannot have that. The worse thing in the world that can happen to you if you’re an engineer and you’ve given your life to something is to have someone to rip it off and put their [sic] name on it. What we want to accomplish is, we just want people to invent their own stuff.” (Tim Cook interview with All Things Digital: http://allthingsd.com/20120720/google-claims-popularity-has-made-some-apple-patents-de-facto-essentials/)


Cook asserts in this statement that Apple does not care to share its ideas with the world. The company wants to use its innovations and engineers to produce great smartphones and tablets—without granting access to consumers at other smartphone and tablet companies. Rather, any consumer can have access to Apple’s innovation as long as the consumer is willing to purchase Apple products.


Apple’s Tim Cook comments that the Cupertino, California company wants to decide the extent of its own ideas and patents, not the consumer. Google asserts that Apple’s innovation, like all company innovations, should influence the world. Who decides: innovator or consumer?


If the innovator decides which features and innovations spread to world consumers, then very little competition will exist; instead, the companies that have on-the-edge innovators and engineers will win. For example, if Apple is the company that has fresh innovations (while other companies do not), then Apple will dominate the smartphone market and there will be a monopoly in place of a competition. No competition will exist, so consumers will have one smartphone company for their communication needs. If, on the other hand, the consumer decides, then competition can exist but distinct smartphone features that belong to one company can become common smartphone features in the future. For many individuals, this means that competition will be annihilated—there will be little need for any since there is the potential for all companies to produce identical smartphones. This is Apple’s stance and a position that is just as much worth considering as Google’s.



Is there any way beyond this seeming impasse? There may not be a comfortable middle ground, but it is possible to view the issue from a different perspective. That perspective will be discussed in my next post. To read material on how to jailbreak your iPhone 3GS or 3G, continue to browse the site.

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