NYT looks at Apple and patent wars from both sides

As part of its ongoing iEconomy series, The New York Times on Sunday evening published a fascinating piece covering patent wars in excruciating detail, touching upon Apple’s decision to go thermonuclear on Android, how the company changed its strategy after it had been forced to pay $100 million for the iPod user interface, why Apple is allowed to own patents covering basic software concepts and more…

Charles Duhig and Steve Lohr filed a front page article for The New York Times, titled “The Patent, Used as a Sword”. The authors talked to former Apple and NeXT lawyers to piece the puzzle of what’s at the root of Apple’s patent attacks.

Here’s a mind-boggling stat: the smartphone biz alone spent an incredible $20 billion on patent litigation and patent purchases in the last two years alone.

Last year, for the first time, spending by Apple and Google on patent lawsuits and unusually big-dollar patent purchases exceeded spending on research and development of new products, according to public filings.

If that didn’t give you a pause, this will.

After Apple was forced to pay a cool hundred million dollars to Creative over the iPod user interface, Steve Jobs figured patent lawyers should no longer have a backseat in the company. Going forward, Jobs figured, Apple will patent as much of its technology as possible.

Creative, a Singapore-based company, was failing in the MP3 player market with its Nomad and Zen portable music players so it sued Apple for patent infringement, based on a 2005 and 2006 patent grants for a portable media player user interface, submitted back in 2001.

Who’s suing who in the smartphone biz. Click for larger.

Steve Jobs, commenting on the $100 million payout, summed up in one sentence what would become Apple’s new stance on patents and intellectual property.

Creative is very fortunate to have been granted this early patent.

In a way, Jobs was true. Lots of people think the patent system is broken beyond repair and whoever patents their stuff first gets to assert their IP against others.

An Apple spokesperson provided the following statement:

Apple has always stood for innovation. To protect our inventions, we have patented many of the new technologies in these groundbreaking and category-defining products. In the rare cases when we take legal action over a patent dispute, it’s only as a last resort.

We think companies should dream up their own products rather than willfully copying ours, and in August a jury in California reached the same conclusion.

According to the paper, Steve Jobs in 2006 summoned his senior managers and patent lawyers to discuss how Apple is going to protect the iPhone’s user interface and technologies, which would be first demoed at the MacWorld keynote in January 2007.

“We’re going to patent it all”, Jobs reportedly declared.

According to Nancy R. Heinen, Apple’s general counsel until 2006 (when she was forced to resign over the stock option backdating scandal), Jobs’s attitude was “that if someone at Apple can dream it up, then we should apply for a patent, because even if we never build it, it’s a defensive tool”.

Soon, Apple’s engineers were asked to participate in monthly “invention disclosure sessions.” One day, a group of software engineers met with three patent lawyers, according to a former Apple patent lawyer who was at the meeting.

The first engineer discussed a piece of software that studied users’ preferences as they browsed the Web.

“That’s a patent,” a lawyer said, scribbling notes.

Another engineer described a slight modification to a popular application.

“That’s a patent,” the lawyer said.

Another engineer mentioned that his team had streamlined some software.

“That’s another one,” the lawyer said.

Apple would even file patent applications knowing in advance they wouldn’t get approved, just to prevent another company from trying to patent the idea. Not everyone approved of such an approach, with one engineer, an Apple veteran, declined to participate because “he didn’t believe companies should be allowed to own basic software concepts”.

Another former Apple exec said:

If we can’t protect our intellectual property, then we won’t spend millions creating products like the iPhone.

As for the iPhone’s slide-to-unlock feature, the concept “might seem obvious now, but that’s only after we spent millions figuring it out”, adding that “other companies shouldn’t be able to steal that without compensating us”.

Robert Budens, a 22-year patent examiner and president of the examiners’ labor union, told the reporters that he often has just two days to research a patent application and write a 10- to 20-page term paper on why he thinks it should be approved or rejected.

He concludes:

I’m not going to pretend like we get it right every time.

By the way, Apple’s Siri patent was approved after ten attempts

It’s a fascinating piece worth reading, I urge you to check it out or save for later.