Author Claims That If Apple And Microsoft Started Today They'd Fail Without Stronger Patent Protection

from the wtf dept

The NY Times has a slightly odd op-ed piece, written by Eamonn Fingleton, author of a book about how China is going to dominate the US economically. That may absolutely be true, but this oped tries to bend over backwards to prove that China will be more innovative than the US... and uses patents as a proxy:

Meanwhile the evidence of international patent filings is looking increasingly ominous. According to data compiled by the World Intellectual Property Organization, the world’s single most prolific filer of international patents as of 2011 was ZTE, a Chinese telecommunications corporation. Its filings were up an astounding fivefold from 2009. Another Chinese corporation, Huawei, moved up to third in the 2011 league table. The only United States corporation to make the Top 10 was Qualcomm.

First of all, the number of patents filed is meaningless. You can file a ton of patents and it means absolutely nothing concerning innovation. First off, applications are different from granted patents. Second, and more importantly, patents show no relation to innovation. Third, when it comes to Chinese patents, the Chinese realized long ago that patents are merely a tool for protectionist tariff-like policies that can be enacted with less scrutiny or trade war issues and have acted accordingly. Basically, nothing in the paragraph above actually supports Fingleton's argument.

But, then it gets much, much worse. He claims that the US somehow has a weaker patent system today than in the past (it doesn't) and then quotes another author claiming that Apple and Microsoft relied on strong patents to survive when they started out:

All this is the more troubling because United States patent law has now been drastically weakened. Congress has made it much harder for small American inventors to protect their intellectual property from infringement and theft.

Pat Choate, the author of “Hot Property,” a book on the theft of intellectual property, maintains that if the new patent regimen had existed when corporations like Apple and Microsoft first got going, they might never have made it out of the little leagues. Their patents would have been quickly infringed by predatory larger corporations, and rather than engage in unequal litigation battles against deep-pocketed and ruthless opponents, they could have felt forced to share their technology on concessionary terms.

Almost nothing in what's said above has any resemblance in the truth. The patent system hasn't been "drastically weakened" at all. Congress made some slight modifications to the patent system, which do nothing to make it harder for "small inventors to protect their intellectual property from infringement and theft."

As for the claims made by Pat Choate, I'm just left shaking my head. First of all, both of Apple and Microsoft's key success stories came from copying the works of other, larger companies when those companies failed to recognize what they had on their hands, and more or less let the upstarts take those ideas and run with them. Also, in both cases, other, larger companies did come in and try to copy them, and weren't that successful. Also, more importantly, neither company aggressively relied on patents to protect its works. Bill Gates famousely said the following about patents:

If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today. I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique. If we assume this company has no need of any of our patents then the have a 17-year right to take as much of our profits as they want.

Not exactly an example of Microsoft using patents to protect itself, but rather quite the opposite. Apple, in the meantime, relied heavily on ideas from Xerox and SRI in making its early computers -- some of which it licensed, and some of which it did not. However, much of the work was not heavily patented and while Apple received some early patents, it did little to enforce those patents to stop copycats (its most famous lawsuit, against Microsoft for copying the Windows interface, focused on copyright... and it failed, anyway).

You could easily argue that if Microsoft and Apple were started today they would absolutely be harmed by today's patent system, but not in the way that Choate or Fingleton suggest. Rather, they would be sued by trolls over and over and over again, meaning they'd be wasting money fighting lawsuits, and possibly wouldn't be able to survive that. What they needed to survive was an era in which patent enforcement was not common and especially one where patents were considered inapplicable to software.

Microsoft and Apple became massive success stories in part because of the weakness of the patent system in their era, because patents don't help innovation, they put a tollbooth on it. This article certainly puts a huge question mark over the quality of both Choate and Fingleton's work, as it shows little actual knowledge of the subject they're discussing.

Filed Under: competition, computer industry, eamonn fingleton, innovation, macintosh, pat choate, patents, protection, startups, windows
Companies: apple, microsoft