• Winning Patents Instead of Market Share

    September 10th, 2005

    Technology companies maintain large legal staffs devoted to intellectual property matters. Patents are routinely applied for to cover even the most innocuous inventions, just in case a rival company might get there first. So it comes as no surprise to learn that Apple Computer is only one of a number of companies that routinely tries to patent one alleged innovation or another. If you pour through some of the applications, you’ll see that even the most mundane products or functional elements are declared to be original.

    But the attention of the tech press has concentrated on two of Apple’s rivals in the wake of a turndown of an application covering some iPod features by the U.S. Patent and Trademark Office. The reason? A prior application from Microsoft allegedly covering the same ground, and it’s no wonder some have speculated that Apple might indeed have to pay the world’s largest software company a royalty fee for every iPod sold.

    Of course, when you really look at the Microsoft patent application, shorn of its legal mumbo-jumbo, you wonder how anyone could confuse it with the iPod user interface. The situation may be more nebulous with a patent touted by Creative Labs as demonstrating it got there first. So what’s Creative going to do with its “crown jewels?” Is Apple going to be forced to pay both Microsoft and Creative to keep building iPods?

    Well, that’s an issue that’s yet to be decided. If Apple decides to stage a full court legal press to protect its interests, the matter could drag on for years. In the end, the era of the iPod might be history before it’s decided.

    But I’m not interested so much in the nuts and bolts of these patent applications as the results. Take a look at the interface of a Creative Zen music player. Examine it closely, put it through its paces, and consider that the company’s products have but a fraction of the market share of the iPod. Now call me naive, but don’t you think that if Creative invented the user interface that found its way into the iPod, why can’t you see the results in a Zen? Forget the difference in case designs and put the protects side by side and compare the operation of one or the other and see if they are different.

    If Apple is indeed cribbing the Zen’s interface, why doesn’t it look the same? Creative Labs got music players to market before the iPod was a gleam in the eyes of Steve Jobs, yet it didn’t become the cultural icon. The iPod did, and not just because of superior TV spots. People believe the iPod looks better, operates better and most reviewers agree.

    So what is the iPod borrowing from the Zen? A graphical interface with hierarchical menus? Why that’s nothing unique. Apple had that in 1984 when the first Mac appeared. So is it unique to graft those qualities onto the LCD screen of a music player? Do the subtleties of the end-user experience count when a patent application is considered, or do the U.S. patent authorities simply examine the first paragraph, look at the dates and grant one over the other strictly on those factors and nothing else?

    Now don’t get me wrong. I am very much in favor of a company protecting its trade secrets, and if it invented a better mouse trap first, it should be granted the appropriate patents and be allowed to profit from its invention. But what if it can’t take that invention and build a product that successfully exploits its innovative elements? Is there some sort of lack of communication between Creative’s legal department and its engineering department? Maybe the message just isn’t getting through, and maybe the company’s executives need to find out why.

    Or maybe, just maybe, the people who built the iPod found a clever way to take tried and true look and feel elements and turn them into something that was sufficiently new and different to become innovative. Maybe it is true that some of the building blocks might resemble arcane legal claims in someone else’s patent application, but the end result is still quite different. Shouldn’t Apple be entitled to patents for its inventions?

    You don’t have to be a lawyer to suspect that the folks in Washington, D.C. who handle such matters perhaps need to become better educated on technology matters. Maybe they are, in a sense, relics of the 19th century. Today we have the unfortunate situation where the market leader is denied approval of its application, but an also-ran that builds an inferior product is judged to be the true innovator.

    If there’s any saving grace in all this, it’s the fact that, whatever the outcome, Apple clearly has more to worry about than a few Mac rumor sites that publish information about its forthcoming products.

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