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.


Reader Comments (rss)

(Flattened / Threaded)

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    identicon
    Anonymous Coward, Apr 3rd, 2013 @ 10:07am

    i can understand the NYT wanting to perhaps promote debate on certain topics, but to allow the printing of drivel of this nature, of this magnitude, is quite worrisome. why do they always seem to print unfounded rubbish, rather than proven facts?

     

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    TG (profile), Apr 3rd, 2013 @ 10:22am

    This is the same NYT

    that told us that if Shakespeare had lived in our age of rampant copyright infringement, he wouldn't have been able to base his plays on recent... oh wait.

     

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    Anonymous Coward, Apr 3rd, 2013 @ 10:28am

    hmmm. If the premise was that if Ms and Apple were starting out today they would have problems DUE to patents (and bizarly copyright as the copyright regime thinks they need to approve all new software and hardware) then sure.

     

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    out_of_the_blue, Apr 3rd, 2013 @ 10:39am

    Actually, Mike, you AGREE!

    "new patent regimen" -- This is the KEY part: "United States patent law has now been drastically weakened." -- Well, taking that as the litigious milieu of today, isn't that EXACTLY what you not only complain of, but STATE right above?

    You could have written this, Mike (probably nearly have): _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."

    Right, NOW is different! -- Because lawyers and grifters are looking for unearned income in a more thieving milieu. -- Everything after the IF refers to different conditions now; it's not even saying that Apple and Microsoft had patents, it's IF were starting now. I guess you can dither whether Congress allowed or set up the milieu, but that's minor.

    Going back over how the early 80's differ isn't relevant to the today that they're addressing. So take all that out. Then looks like you only imagine some conflict with your own views.

    You've clearly bumped the shirk, or whatever that phrase is, and SHOEHORNED in your usual notions so much that you don't see Fingleton as ally, needing only some tweaking.

     

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      AC Unknown, Apr 3rd, 2013 @ 10:51am

      Re: Actually, Mike, you AGREE!

      It's "Jumped the shark", and you have clearly done so.

       

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      Anonymous Coward, Apr 3rd, 2013 @ 11:23am

      Re: Actually, Mike, you AGREE!

      Blue - I hate to say, but I think I agree with you.

      I need to think on this more...

       

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      DannyB (profile), Apr 3rd, 2013 @ 11:29am

      Re: Actually, Mike, you AGREE!

      Please do not post until sober or able to form coherent sentences that when read in sequence are easily parsed and form coherent meaning.

       

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      Anonymous Coward, Apr 3rd, 2013 @ 11:35am

      Re: Actually, Mike, you AGREE!

      You are agreeing with Mike and arguing against the op ed there blue.

      Op-ed says we need stronger patent laws to protect against thieves and grifters stealing innovation.

      Mike and you are both saying that the current troll filled system would crush either start-up under worthless litigation.

      So Fingleton may be right that MS + Apple would have a hell of a time starting off today. But he is arguing that is because it's too easy to infringe and patents don't provide protection from people ripping you off.

      But as you and Mike both say, these companies wouldn't make it because there are too many stupid, useless and/or obvious patents that would allow larger companies and trolls to sue them out of existence or demand unfair cuts from their profit.

       

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      nasch (profile), Apr 3rd, 2013 @ 3:29pm

      Re: Actually, Mike, you AGREE!

      Actually, Mike, you AGREE!

      NYT: "Their patents would have been quickly infringed by predatory larger corporations"

      Mike: "they would be sued by trolls over and over and over again"

      These are almost the opposite of each other.

       

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    Anonymous Coward, Apr 3rd, 2013 @ 10:45am

    Computer software didn't used to be patentable but was protected by copyright alone.

     

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    jackn, Apr 3rd, 2013 @ 10:46am

    If Apple And Microsoft Started Today They'd Fail


    is this a bad thing?

     

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      Anonymous Coward, Apr 3rd, 2013 @ 11:10am

      Re:

      Possibly. Without the iPod and iTunes, we wouldn't have many legal options for purchasing digital music. Without Microsoft, Linux would probably have a smaller following.

      Without both? That would probably (but not certainly, be less advanced in the phone era.

       

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      Anonymous Coward, Apr 3rd, 2013 @ 3:35pm

      Re:

      Unequivocally yes.

      Is this a question?

       

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    Zakida Paul (profile), Apr 3rd, 2013 @ 10:46am

    Actually, with the protectionism we have today, they would not be able to steal other people's work and that is why they would fail.

     

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    Anonymous Coward, Apr 3rd, 2013 @ 10:50am

    All imaginable inventions have already been invented.
    Manager of the American Patent Agency Charles Duell 1899

     

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    Anonymous Coward, Apr 3rd, 2013 @ 11:09am

    Yes, Apple could NEVER survive as a start up today, mainly because of copyright and patent trolls like Apple claiming ownership of things like 'rounded edges'.

     

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      Anonymous Coward, Apr 3rd, 2013 @ 11:31am

      Re:

      Hmmm. I think that is already patented by Aperture Science. They use an edgeless cube in many of their experiments.

       

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    DannyB (profile), Apr 3rd, 2013 @ 11:27am

    Software Patents didn't exist when Apple and Microsoft started

    > then quotes another author claiming that Apple and Microsoft
    > relied on strong patents to survive when they started out

    Um . . . software patents didn't exist when Apple and Microsoft started. So how exactly did they rely on patents?

    Software IP protection at that time was all about copyright and trade secrets (like source code and some knowhow).

    When the specter of software patents emerged at the dawn of the 1990's, a number of important people at Apple were against it and wrote articles saying so. They opined that eventually you would have to be or hire a lawyer in order to simply write software. Hindsight shows they were right.

    I would also point out that if Apple and Microsoft started today, with software patents in existence, they would indeed fail but they would fail because of software patents being used against them.

     

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    harbingerofdoom (profile), Apr 3rd, 2013 @ 11:28am

    the premise that they would fail if started today is 100% spot on.
    the problem is that is the reason is incorrect. they would never get off the ground before the lawsuits started flying.

     

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    Anonymous Coward, Apr 3rd, 2013 @ 12:27pm

    If Microsoft and Apple were started today, we'd all be on Linux and people would genuinely question who would pay for an operating system.

     

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      Anonymous Coward, Apr 3rd, 2013 @ 1:14pm

      Re:

      If we didn't have Google we would all be using Firefox anyway, and without MS we would have spared many innocent civilians of the horror and trauma that was using IE in the early 2000s...

      I don't see a loss here...

       

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    Anonymous Coward, Apr 3rd, 2013 @ 2:20pm

    If Apple and Microsoft started now, they'd fail because no one wants those old products anymore!

     

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    special-interesting (profile), Apr 3rd, 2013 @ 2:27pm

    Its been shown several time over that the longer and more draconian monopolies are (be it copyright, patent, software patent or whatever type of monopoly government sanctioned (give me a break!) or otherwise) the slower technological growth is. Thus; productivity and innovation using new technologies WILL be slower and this is a cultural fact.

    A problem this simple is solved by straightforward inspection using no math or logic greater than “if this is true then that is also true.” Its amazing how buzzwords and a culture of misinformation completely bypass critical review of the obvious.

    Stick to simple analysis and personal/business/corporate life is so much more manageable and profitable.

    We all use the works of others. Its called looking over someone else's shoulder. We all want to be “standing on the shoulders of giants”. Its a common social meem and since a lot of times it works its gonna happen. Its universal that we all want to learn something that will allow us to live smarter, better and more profitable. Its called innovation.

    https://en.wikipedia.org/wiki/Stand_on_the_shoulders_of_giants

    Its easy to understand that 17 years is to long and undeniable that life plus 70 is a culturally destructive plan. Culture at all levels. Personal, state, national and intentional.

    Reactionary.

    I so totally agree that the article was drivel. The NYT should be embarrassed. Special interest motivated? Who knows.

    Protectionism is an insect infestation that eats away any nation's technological innovation and commercial growth.

     

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    Anonymous Coward, Apr 3rd, 2013 @ 8:50pm

    Congress made some slight modifications to the patent system...

    The change from "First to Invent" to "First to File" was hardly a slight modification.

     

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    Miff (profile), Apr 4th, 2013 @ 11:42am

    Well actually if they had today's level of patent enforcement back then, Compaq would have been wiped off the map and IBM would have remained the dominant player in the computing world.

    Oh yeah, and we wouldn't have had the portable PC so there's that.

     

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    staff, Apr 5th, 2013 @ 8:33am

    more dissembling

    'First of all, the number of patents filed is meaningless.'

    Congratulations. You finally got one right. It's not the number of patent applns filed, but rather the breadth and quality of those that issue. That's why often times it's the small inventor who gets the jump over large corporations.

    'patents show no relation to innovation'

    You should have stopped while you were ahead. But then a sows ear will be a sows ear. As is plain for anyone with eyes to see, if one is awarded the patent that means they created the technology the patent covers.

    Mere dissembling by thieves! It is not innovation that patents hinder, but the theft of.

    Do you know how to make a Stradivarius violin? Neither does anyone else. Why? There was no protection for creations in his day so he like everyone else protected their creations by keeping them secret. Civilization has lost countless creations and discoveries over the ages for the same reason. Think we should get rid of patents? Think again...or just think!

    Masnick and his monkeys have an unreported conflict of interest-
    https://www.insightcommunity.com/cases.php?n=10&pg=1

    They sell blog filler and "insights" to major corporations including MS, HP, IBM etc. who just happen to be some of the world’s most frequent patent suit defendants. Obviously, he has failed to report his conflicts as any reputable reporter would. But then Masnick and his monkeys are not reporters. They are hacks representing themselves as legitimate journalists receiving funding from huge corporate infringers. They cannot be trusted and have no credibility. All they know about patents is they don’t have any.

    http://truereform.piausa.org/default.html#pt.

     

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