on 15 September 2006So Apple has paid $100m to Creative, its rival in the music player market, to license patented technology used in the iPod. If you’re the kind of person who goes through life cheerfully taking everything at face value – perhaps a former middle-ranking Enron executive, or any recent Home Secretary – then this is a perfectly straightforward story.
In 2001, Apple designed a digital music player containing an invention already present in a music player made by Creative, which had lodged a patent application for it. Apple made squillions of dollars from its music player. Creative sued for its rightful share.
Now let’s say you’re the awkward kind of person who thinks things like, ‘Hey, aren’t these numbers supposed to add up?’ or, ‘That Mohamed Atta had a valid passport; surely it wouldn’t have made any difference if it contained biometric proof of his identity?’ The first thing that’s going to ring alarm bells in your paranoid little mind is that word ‘invention’. Anyone who’s read the Ladybird Book of Intellectual Property will know that you can’t patent just an idea of how to do something; you have to describe an invention that embodies that idea in a specific way. But software patents pick at the seam of that principle until it spins like a Flip N Flyer (US Patent #6585552).
Creative’s patent describes ‘A method, performed by software executing on the processor of a portable music playback device, that automatically files tracks according to [a] hierarchical structure of categories to organize tracks in a logical order.’ Let’s parse that, tricky as it may be when people can’t even get to the end of a sentence without losing an indefinite article somewhere along the way.
‘A method’. Yes, you’re allowed to patent a method, which is completely different from just an idea of how to do something, no? ‘Performed by software’ – as opposed to the Orchestre Métropolitain du Grand Montréal? ‘Executing on the processor’ – always a good thing for software to do. ‘Of a portable music playback device’ – a recent invention whose newness might rub off on this method, which could just as well be implemented on a Sinclair Spectrum. ‘That automatically files tracks’ – right, automatically, it’s so annoying when software just sits there while you do something yourself. ‘According to [a] hierarchical structure of categories’ – well, anarcho-syndicalist users might have preferred a structure without hierarchy, but the rest of us would have wondered if dumping all our tracks in one folder really constituted filing. ‘To organize tracks in a logical order’ – as opposed to an illogical order? If only they hadn’t put that bit in, they could have had Apple for the iPod shuffle as well.
Of course, there’s more to the patent than this. Just not very much more. For example, it says tracks would be selected on successive ‘display screens’. Dang, why couldn’t Apple just go the punch card route instead of ripping off Creative’s new-fangled ideas? Sorry, methods.
If you weren’t a patent lawyer, you could be forgiven for thinking that Creative had merely described something that any fool could have worked out in five minutes. If you were a patent lawyer and weren’t working for Creative, you might argue that Creative’s invention was ‘obvious’.
If you were a patent lawyer working for Apple, however, you might think two could play at that game, and dig out a few software patents of your own to countersue Creative. Which is exactly what Apple tried. In the end, it was less hassle to hand over the cash. Had Apple been a small, innovative startup of the kind that capitalist governments vow to nurture, it wouldn’t have had the money, or any patents to swap, and a raised eyebrow from Creative’s lawyers would have killed it and its iPod malarkey stone dead.
A case currently before the Supreme Court, KSR v Teleflex, centres on obviousness. It’s all a bit technical for us non-patent-lawyers, but when the US Solicitor General recently weighed in, one of his criticisms of the existing obviousness test was that ‘it fails to account adequately for the problem-solving abilities of persons of ordinary skill in the art’. In his lawyerly way, I think he was saying: ‘Couldn’t any fool have worked this out in five minutes?’ Which is how the rest of us will react when our elected representatives finally twig that software patenting encourages innovation in the same way that cluster-bombing discourages terrorism.
Adam Banks is working on a patent application for a method of generating vacuous patent applications.
adambanksdotcom @Herring1967 "watching on screen"?! That's not a subeditor, it's a butcher with English as a third language
{ 1 comment… read it below or add one }
Adam, I’ve looked over the patent in question and (hopefully) I can supply some of what you’re missing here.
Creative released one of the earliest portable MP3 players, the Creative Nomad, in 2000, the year prior to the granting of this patent. That device was an actual, concrete embodiment of the invention described in the patent you cite. It was not a “software patent”, it was a patent on the operation of a physical piece of equipment.
Apple introduced the iPod (as you note) in 2001, subsequent to the introduction of the Nomad. Rather than coming up with an original method of organizing the music on the device based on the metadata, the way in which Apple did it mimicked the operation of the Nomad to an extent that it infringed this patent.
Whether anyone could have “worked it out in five minutes” is not really relevant, the fact seems to be that—prior to Creative’s introduction of the Nomad—no one actually had. Whether it’s “obvious” or not, once someone’s already thought of it, is challenging to assess. Judges do it based on prior related patents and expert testimony from those “skilled in the art”. In this case, someone evidently decided (doubtless in Apple’s legal department) it wasn’t “obvious” enough.
(Let me note here that the notion of intermittent windshield wipers probably takes only five to ten seconds to “work out”, once you’ve actually come up with it. This was no barrier to the inventor’s suing multiple car manufacturers, and winning about a hundred million dollars in damages, for their infringing use of his invention. It’s having thought it up, and first, that matters, not how long it took you.)