Why HTC ITC Patent Tiff With Apple Is Bad

HTC Sensation The U.S Patent office starting granting software patents in the 1970's. Recently a judge from the U.S. International Trade Commission decided a spat between Apple and HTC. It found in favor of Apple who said that HTC's Android-based products infringed on two patents that Apple holds.

This is only the most recent episode regarding Android. Android has been under attack from a number of different companies including Microsoft that has been going after Linux. Microsoft has forced a number of vendors to license its technology.

While Microsoft was interested in licensing fees, Apple looks to prevent HTC from selling its products. Both are valid ways to utilize patents but it could lead to mutually assured destruction (MAD). Typically companies with large patent portfolios will cross license allowing at least these companies to play together.

Ok, nothing new here. This has been the approach to company interaction since patents were available. Unfortunately, software it a bit different. A million lines of code is not uncommon for applications let alone operating systems. A chunk of hardware might have a couple patents to a couple hundred but software has the potential to be impacted by significantly more.

In the past, patents have been forced into pools that could be licensed. The Sewing Machine Combination was the first patent pool in the United States. There were four member companies: Singer Manufacturing Company, Howe Machine Company, Wheeler & Wilson, and Grover & Baker. The last patent expired in 1877.

Patents should, in theory, promote innovation and scientific research. In practice it has been quite different. In the case of the avionics industry in the U.S., the government needed to take steps again to create a patent pool, the Manufacturers Aircraft Association, otherwise aircraft development and deployment would have slowed to a crawl.

Lawsuits by the Wright brothers damaged their public image. We have not hit this level of acrimony in the computer industry but it is moving in that direction.

Being open source, Android actually has a tougher time with patents because developers have access to the code. Closed operating systems like Microsoft's Windows and Apple's iOS require a patent holder to infer whether their technology is part of the operating system. In some cases this is easy but in others it can be difficult.

Unfortunately I don't hold out hope that anything will change on the patent side. There are heavy duty forces like patent lawyers and holders of large patent portfolios that like the status quo. I won't even get into the dicussion of patent trolls that make this whole mess worse.

A big problem with software patents is how little one patent has to do with most systems where it is utilized. Another problem with software patents is the number of people affected by these patent fights. The most numerous are the end customers but there are thousands of developers working on apps and tools for Android or any other platform you can think of. On the other hand, it provides plenty of fodder for journalists.

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