Apple Sues HTC For Patent Infringement – Mad Hatter Article Confuses Everybody

My wife tells me that I don’t have to explain everything to everyone, that they aren’t stupid. The problem is that she’s used to me, and my sometimes wild conceptual swings, and the rest of the world isn’t. So let’s take a look at the things that people have questioned me about over the last twenty-four hours.

1) I was accused of attacking IBM. This has me really confused. I didn’t mean to attack IBM (not that I wouldn’t if I felt like it). I don’t see where I attacked IBM. And I haven’t heard back from the person who says I did. So I don’t know what he meant.

2) A bunch of people thought that I was advocating stealing from Apple. After talking to a couple of the people who accused me of that, I understand what their problem is. They think, that since Apple has patents that were issued by the United States Patent and Trademark Office (USPTO) that Apple owns the ‘Intellectual Property’ covered, and that attacking the validity of Apple’s patents meant stealing from Apple. I pointed out that if the patents were invalidated by a previously issued patent that it would be Apple that was stealing the ‘Intellectual Property’ from someone else.

2.1) When they asked how it was possible that a patent could be issued to cover technology that had already been patented, I pointed out that people make mistakes, and that the USPTO was staffed by people.

2.2) When they asked what the situation was if the technology hadn’t been previously patented, I pointed out that the wheel had never been patented, and that patenting a technology like the wheel was illegal. Again, the USPTO is staffed by people, and people make mistakes, and it was possible that Apple had been issued a patent that they legally should not have been issued.

3) Another argument was that Apple has made a lot of contributions to the Free and Open Source Software Community, and that therefore Apple should get special treatment. After all, the community isn’t involved, Apple is suing HTC. But what if the technologies that Apple is suing HTC over originated in the community? Should Apple be able to attack HTC for using things that the community invented?

4) Why should the community be allowed to sue over non-compliance with the General Public License (GPL), if Apple can’t sue to protect it’s patented inventions? This is the best argument that anyone has given me. Apple has the same right to protect it’s ‘Intellectual Property’ that the community has. But there are some significant differences between copyright infringement and patent infringement. Both are incorrectly lumped under the catch-all term ‘Intellectual Property’, along with Trademarks. Richard Stallman has written an excellent article called ‘Did You Say ‘Intellectual Property’? It’s a Seductive Mirage‘ on why the term is wrong and shouldn’t be used.

4.1) It’s a lot easier to prove Copyright Infringement than it is Patent Infringement. The GPL lawsuits have had very solid proof behind them. The Apple suit against HTC may or may not have this level or proof behind it. At this point we don’t know.

4.2) Patents protect a specific way of doing something. Let’s assume that I am issued a patent on a four stroke spark ignited reciprocating internal combustion engine, and you are building a two stroke spark ignited reciprocating internal combustion engine. You don’t infringe on my patent. It is quite possible that the patent that Apple has been issued isn’t infringed by the technology in the HTC phones. Or for that matter I’m issued a patent for one type of sort, and you’ve invented another. We both based our sort on an earlier type, but we implemented the our sorts using different algorithms, and therefore your sort doesn’t infringe on my patent.

As I said in the original, I haven’t read Apple’s patents yet, and I have no idea how strong their case against HTC is. That doesn’t matter. What matters is the perception that by suing HTC for it’s use of Android, which is based on technology developed by the community, that Apple is attacking the community. The community doesn’t like being attacked, and is taking action against Apple.

So if you are considering a lawsuit against a competitor who uses Free and Open Source Software in the product you claim infringes on your patents or copyrights, don’t expect the community to like what you are doing, and do expect them to do something about it.

Wayne Borean

Tuesday March 16, 2010

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