When Titans Clash

Another day, another software patent verdict:

Apple Inc. sought to overturn a jury verdict that could force the computer maker to pay up to $625.5 million in damages for infringing a small technology company’s patents.A federal jury in Tyler, Texas, on Friday found that Apple had infringed three patents owned by Mirror Worlds LLC, a company founded by David Gelernter, a Yale University computer science professor. The jury recommended Apple pay damages of $208.5 million a patent in the case.


The company’s suit, filed in 2008, cites patents covering how data is organized in streams and displayed, alleging Apple’s iPod, iPhone and Macintosh computers violate its patents.Apple technologies cited in the case include those used in Cover Flow, a graphical interface that is integrated in iTunes so users can flip through images of album artwork; Spotlight, software that lets users conduct a system-wide search for files on their computer; and Time Machine, software that backs up files, so they can be restored at a later date.

Of course Apple doesn’t like this verdict, but it’s important to understand that the real victim here isn’t Apple but hypothetical future Apple competitors who now will only be able to include “cover flow” functionality if they pay a ransom to David Gelertner. Which is why though Apple will contest this particular ruling, they won’t contest the system that led to it. Instead, they’ll just assert that they own the patent on this “technology.”


But the whole thing is nuts. If you’re talking about a capital intensive industry, then the case for patents is strong. The existence of the patents stifles competition but it also attracts capital to the industry. But writing computer code isn’t capital intensive at all. You need a guy with skills and a computer. Except in a world of software patents, to actually comply with the rules you also need an army of lawyers. So actual compliance is extremely difficult and you have all this economically useless post hoc litigation and flailing incumbents enjoying some old-fashioned rent-seeking.

To be clear here, the issue isn’t the copying of code, which is covered by copyright. It’s the copying of the function served by the code. It’d be like saying the makers of Rush Hour need to pay a licensing fee to the producers of Lethal Weapon because they already patented the idea of an interracial action/comedy movie about cops. Then we could argue in court about how much difference it makes that in the newer movie one of the cops is Asian instead of white. At the end of the day, it’d just be one rich movie studio paying another, but independent film producers everywhere would need to worry that if they ever turned out to be responsible for a hit they’d just end up facing a lot of genre patent lawsuits.