Just Because Companies Can Design Around Patents Doesn't Mean There's No Impact For Consumers

from the economic-reality dept

Tue, Mar 20th 2012 2:27pm — Mike Masnick

This one's from a few week's back, but a few people have called it to my attention. Nilay Patel over at The Verge argued that because various companies offering Android phones have been able to design around a couple of Apple patents that have made their way into lawsuits -- #7,469,381 which covers the "scrollback" bounce when you scroll to the end of a page, and #7,657,849, which covers the "slide-to-unlock" concept -- that there's "really no day-to-day impact on the consumer" from the big patent fights going on over smartphones.

That seems like a rather simplistic analysis. Patel is right that many companies are "designing around" these overly broad and somewhat silly patents, and so it doesn't mean that Android phones aren't available. But that doesn't mean that there's no real impact on consumers. While it can't be quantified directly, there are numerous ways in which these patents are likely impacting the results. First, there's a matter of cost. The legal fights over patents are quite expensive, and that's almost certainly keeping prices on these devices somewhat higher than they might otherwise be. Second, the money and time it takes to do that "designing around" potentially slows the development of these phones. Third, those same resources could have been put elsewhere, working on additional innovations that would make the phones better and more valuable. Instead, they're forced to reinvent the wheel without doing the same scrollback or slide to unlock. Finally, while some will claim that forcing these companies to invent around the patents can lead to new innovations, there's little evidence to support this claim. Certainly it might happen accidentally, but letting developers come up with new innovations based on their own experiments and what the market tells them is always going to be more efficient than stumbling on some innovation because you're trying to avoid the artificial monopoly of a patent.

Of course, this is one of the difficult things in discussing the problems of the patent system. People insist they can't be that bad because these devices are still on the market. It's difficult to see or even explain the innovations that we don't have because of this, or even to show how the pace of innovation is almost certainly slower because of this, but that's exactly what plenty of research has shown for years. No one says that innovation stops completely because of patents, but we have significant concerns about how they impact the overall pace of innovation, as well as the specific direction of innovation. While it might not seem to have a "day-to-day impact on the consumer," chances are it's having quite a large one. We just can't see how big.

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Filed Under: android, design around, impact, patents, smartphones
Companies: apple, google

30 Comments

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:Lobo Santo (profile), 20 Mar 2012 @ 2:30pm

Driving Innovation... away
See! At least a percent or two of the cash wasted in these patent squabbles is going directly into developing a way to do the exact same thing; only differently...

That's innovation, right?
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Richard (profile), 20 Mar 2012 @ 2:31pm

You miss one more effect
They destroy the possibility of interface standardisation.

Imagine if the arrangement of pedals on a car had been patented - so every maker had to lay them out differently.

Learning to drive would be a nightmare - just like learning to use a new smartphone can be...
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weneedhelp (profile), 20 Mar 2012 @ 2:39pm

The Wall
It will be only a matter of time until routing around is not an option. There will be so many obstacles. Instead of peak oil, think of it as peak innovation. If we keep going this way it will be inevitable.
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bordy (profile), 20 Mar 2012 @ 2:45pm

A personal anecdote of why the mutually-assured-destruction-by-patent wars are silly (especially applicable to Apple's "slide-to-unlock" patent): I have an iphone, jailbroken of course, and use an android-type unlock method. But thank god Apple was able to get its patent - it gave me the opportunity to look for better software.
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sehlat (profile), 20 Mar 2012 @ 3:04pm

Noticing an absence of something is very difficult.
From Sir Arthur Conan Doyle's story "Silver Blaze":

"Is there any point to which you would wish to draw my attention?"

"To the curious incident of the dog in the night-time."

"The dog did nothing in the night-time."

"That was the curious incident," remarked Sherlock Holmes.
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BentFranklin (profile), 20 Mar 2012 @ 3:14pm

The sum total of all non-productive economic activity is an effective tax or toll on the productive activity, and the customer pays for all of it.
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crade (profile), 20 Mar 2012 @ 3:19pm

Re: The Wall
It doesn't matter even the routing around is misspent effort that could be spent making things we need instead of reinventing the wheel.
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awbMaven (profile), 20 Mar 2012 @ 3:24pm

Innovation vs Invension
"Finally, while some will claim that forcing these companies to invent around the patents can lead to new innovations, there's little evidence to support this claim. Certainly it might happen accidentally, but letting developers come up with new innovations based on their own experiments and what the market tells them is always going to be more efficient than stumbling on some innovation because you're trying to avoid the artificial monopoly of a patent."

I'm having difficulty getting my head around the different between inventing and innovating. I had to use Google:
"Invention is the first occurrence of an idea for a new product or process while innovation is the first attempt to carry it out into practice." http://www.ipfrontline.com/depts/article.aspx?id=16295&deptid=5

So, an innovation is merely a practical implementation of an invention?
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TtfnJohn (profile), 20 Mar 2012 @ 3:41pm

Re: Innovation vs Invension
Most often, and since software patents are often assigned to non practicing entities who use them as weapons when someone else has the idea and implements it it's waste of economic activity.

Or silly things like the "one click" patent for which there were mountain ranges of prior art only it seems the patent examiner either ignored it or was too ignorant to know.
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Anonymous Coward, 20 Mar 2012 @ 4:16pm

Because only big companies can afford to pay to route around a patent everything is fine.

The little guys you know the ones that don't have those capabilities and are responsible for the majority of jobs everywhere are on their own though.
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Torg (profile), 20 Mar 2012 @ 4:49pm

Re: Innovation vs Invension
Resources are spent making smartphones do things that smartphones already can do instead of helping smartphones do things that smartphones can not currently do. I'm not sure what the proper terminology for that would be, but invention as opposed to innovation works as well as any.
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Jeffrey Nonken (profile), 20 Mar 2012 @ 5:05pm

I believe the Broken Window Fallacy applies here.
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anon lacking courage, 20 Mar 2012 @ 7:19pm

efficent innovation
The statement "letting developers come up with new innovations based on their own experiments and what the market tells them is always going to be more efficient than stumbling on some innovation because you're trying to avoid the artificial monopoly of a patent" suggests that there are metrics for innovation, such that the methods of innovation can be compared.

While innovation is a constant topic for Techdirt, I do not recall and am unable to find any metrics for efficiency of innovation. Perhaps this could be the subject of a future Techdirt posting?
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Anonymous Coward, 20 Mar 2012 @ 7:22pm

I don't see why people continue to defend the patent system despite demonstrating many times that it fails to achieve its stated goal, even going against it. Innovation happens by building on previous innovations and improving them. But the way the patent system is, the people who put hard work into doing this end up being punished. That does not promote innovation in any sense of either word.
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balaknair, 20 Mar 2012 @ 11:10pm

The whole reason behind apple's patent lawsuits against samsung and htc was not to get them to innovate, it was to make it as expensive as possible to use android, and timed so as to delay availability of their products in various markets especially during the critical holiday shopping season. The patents themselves were trivial to work around, but anyone searching for something like galaxy s2 reviews/deals would find news articles on sites like the bbc about samsung losing patent lawsuits and how the entire android smartphone line up might be banned in the EU. That would hardly make you feel comfortable buying an android phone, would it? Basically an expensive way to FUD.
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Anonymous Coward, 20 Mar 2012 @ 11:12pm

"Second, the money and time it takes to do that "designing around" potentially slows the development of these phones."

it would not slow development, but it would certainly increase innovation, and create product diversity, which is a good thing..

That is how technology, and knowledge progresses, not by doing exactly the same thing others are doing, but by doing the same thing in a different and better way.

Thats why tyres on cars are not made from wooden logs or rocks, because someone designed a better wheel/tyre, that is why we have internal combustion enginess, instead of steam engines, because someone 'designed around' the steam engine.

Therefore it ensures a progression on technology..

So you can have your steam powered, wooden wheeled car now, or you can wait for awile, and have a turbocharged diesel engine with low profile, long lasting and safe rubber and steel tyre, with disk breakes instead of a chunk of wood you hold against the wheel to stop !
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Anonymous Coward, 20 Mar 2012 @ 11:43pm

Re: Innovation vs Invension
"I'm having difficulty getting my head around the different between inventing and innovating."

you can work it out, if you think about it. Invention is coming up with something new, or a new method to achieve a specifc result, such as inventing the rubber tyre to replace wood.

Innovation, is using something that has been invented in a new and different way.

It is innovative to be use your analog wrist watch and the sun to work out the direction of North, that's innovation, you did not invent the watch, or the sun, but you applied those objects in a new and innovative way. It's sometimes confusing because they both start with "I".

(as does Idea) but one thing at a time.
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Anonymous Coward, 20 Mar 2012 @ 11:47pm

Re:
oh dear !!! customes pay manufactures to create products that can do more that we want them to do, and to do those things in a variety of different ways to ensure customers actually have a CHOICE !!! More variety, more functionality, more choice, and more competition, what are you complaining about ?
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Anonymous Coward, 21 Mar 2012 @ 1:56am

Are you high?

If company (A) patents rubber wheels, company (B) patents disc brakes, company (C) patents low-profile cars and company (D) patents diesel engines then WE CAN'T HAVE ONE GOOD CAR, YOU STUPID SHILL FUCKTARD!
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awbMaven (profile), 21 Mar 2012 @ 4:10am

Re: Re: Innovation vs Invension
Thanks. I think I must have had brain flatulence yesterday as today the difference seems crystal clear. (What confused me even more was that rubbish definition I found and posted!)

As an aside, it also help me understand a reason why the EU did not want patents included in ACTA.

Patents (inventions) could stifle innovation if the patents granted are too broad (like the "slide-to-unlock" concept patent). I can now understand why the EU made a big kerfuffle did not want to be bound by stifling US patents and make EU innovators criminals for innovating off US patent holders.

Listening to EU authority actors, they often make a big deal about innovation, now I think I understand why.
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Anonymous Coward, 21 Mar 2012 @ 5:24am

Re: You miss one more effect
This is dead on. Patents are not good for society. They are Great for the person making the patent...
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Anonymous Coward, 21 Mar 2012 @ 5:30am

Re: Re:
See Richard's comment: "Imagine if the arrangement of pedals on a car had been patented - so every maker had to lay them out differently."

So, your snarky and non-productive comment is a waste of your time to make and our time to read.

How about trying harder to actually contribute a thoughtful and productive comment on how to best work with patents that cost all of us (Even you smarty pants.) money at the register.
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Cowardly Anonymous, 21 Mar 2012 @ 5:50am

Re: efficent innovation
Purposeful exercise can be optimized. Accidental exercise can not. Even if you are horrible at darts, taking aim is almost always going to yield more bulls-eyes than throwing at random.

The yield of random is commonly used as a base-line in metrics. We test possible improvements against this, and don't use anything that offers lower yield.

The efficiency of a good business that will win out over competitors has to beat random, or the competitors could win by simply using random. Thus, the competitive market place ensures that the efficiency of random will eventually serve as a floor, meaning that purpose driven structures will do better on average.

You state we have no metrics for the efficiency of innovation. I state that, so long as patent and copyright laws remain in effect, any attempt to establish these metrics will be skewed. Additionally, these laws hamper the competitive effects mentioned above.
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Cowardly Anonymous, 21 Mar 2012 @ 6:07am

Re:
Sure, it will increase innovation in a certain direction. That direction is things that have already been done, and the innovation is in finding loop-holes in the patent.

However, there is no guarantee that the new system will be better. Allow me to provide you with an example. Suppose:

Main(int argc, char * argv) {
printf("Hello World");
}

is our patented method for creating text output. Is:

Main(int argc, char * argv) {
coutmight go down, but that will free up resources for more projects, which allows the company to expand and attempt more ambitious innovations.
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Cowardly Anonymous, 21 Mar 2012 @ 6:10am

Re: Re:
*Note: double opening angle brackets eats posts*

(streaming an output) really all that useful by comparison?

The answer is that it is useful if it leads to the notion of a stream, but purely redundant if the stream idea already exists.

Thus, some new innovations appear and some innovations are redundant.

Now, let us free up that innovative work to apply it in another fashion. The company is more competitive if they create something new, so they will. This means you obtain no redundant innovation.

In other words, with patents you have (xmight go down, but that will free up resources for more projects, which allows the company to expand and attempt more ambitious innovations.

Now, let us free up that innovative work to apply it in another fashion. The company is more competitive if they create something new, so they will. This means you obtain no redundant innovation.

In other words, with patents you have (xmight go down, but that will free up resources for more projects, which allows the company to expand and attempt more ambitious innovations.
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Lord Binky, 21 Mar 2012 @ 6:42am

No impact for consumers? The whole abused patent system is so bad it is actively hurting the economy, but it's more like an internal wound so it just doesn't get the immediate blame. Really, other than lawyers, who is really better off with the patent system as it is than they would be without it.
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Torg (profile), 21 Mar 2012 @ 6:43am

Re:
Internal combustion engines weren't designing around steam engines, they were improving upon the concept. The differences are, first, that if internal combustion engines were invented now the steam engine companies would sue their inventor for having an engine that uses heat-induced expansion to move pistons, and second, internal combustion engines are superior regarding power, size, and longevity, meaning there's a clear incentive to develop them beyond merely not being allowed to make a steam engine. You can also tell the difference because designing around something only happens when that something is protected by patents, which wasn't the case with steam engines at the time that internal combustion engines began to pick up steam.

The other problem with your post is the assumption that people only innovate when they don't have something that's already good enough. If that were true gas lamps and electric lighting would never have been created, because torches were not patented and therefore there was no reason to design around them. The abacus was around millennia ago so why did anyone see the need to invent computers? Do you think ironclads were invented because someone had patented wood boats, or guns because someone patented the sword? Better things are created because they are better, not because mediocrity is sometimes illegal.
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Not an Electronic Rodent (profile), 21 Mar 2012 @ 6:54am

Re:
And yet here I was the other day hopping channels and caught one explaining about how the patenting of a steam engine in England set the industrial revolution back because everyone spent their time trying to re-invent the steam engine in a way not covered by the patent and how there was a huge explosion of innovation and industial output as soon as the patent expired.
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TtfnJohn (profile), 21 Mar 2012 @ 5:07pm

Re: Re:
That's the short form of what really happened. While the patent did earn James Watt a ton of money there's no doubt it held things back until the patent expired.

There has been some argument over whether or not the explosion in innovation would have occurred had people not been forced to try to design around or whether it would have occurred anyway. I tend to side with those who say it would have happened, and sooner, had the patent not existed.
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Paul, 22 Mar 2012 @ 5:53am

Re:
Dude take your high-school exams, read some books, volunteer in a project (preferably open source software or IT stuff) and then come back after a few years and scream about innovation and patents with examples from your work. Till then stop wasting bytes with your greenhorn opinions.
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