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Apple Is Accused of Violating Software Patent
outz writes "And it begins... Creative Technology, a maker of portable music players, has accused Apple Computer of violating a newly granted software patent covering the way users navigate music selections." From the NYT article: "Creative Technology, which is based in Singapore and has United States operations in Milpitas, Calif., said it would consider every option available to defend the patent, including possible legal action. Apple declined to comment on the patent. The patent, which the company calls the Zen Patent, covers Creative's interface for portable players, which allows users to select a song, album or track by navigating a succession of menus. The patent office awarded the patent on Aug. 9." We reported on the granting of the patent a few days ago.
Considering Apple holds the lion's share of the MP3 player market, though a late comer, it's not surprising to see the legal threat, but perhaps Creative Technologies should be looking at their own failure to capitalise on the market which left the door open for Apple.
Patent 6,928,433
A feeling of having made the same mistake before: Deja Foobar
When I try to think of prior examples of people implementing the Creative patent as I understand it, the absolute first thing that comes to mind is... that little file browser thingy from NeXT. Which was later assimilated into OS X when NeXT was bought by... Apple. Can you tell the difference between this and the cascading menus in the iPod? Because I can't.
And of course I'm still trying to figure out whether NeXT themselves ripped off the browser from that class browser widget you see so often in Smalltalk, or if it went the other way around.
Oh, but of course, the NeXT example covers a browser for files and the Smalltalk example covers a browser for objects, and in the mad calculus of patent law this is totally different from a browser for music files...
Irritable, left-wing and possibly humorous bumper stickers and t-shirts
When a sliding company makes a bold and aggressive attack on the market leader, don't look for a direct link between that company and the attack.
Instead, look to other companies who would benefit most from such an attack.
Creative do many things, and attacking Apple in the player market is a very high risk gamble. If they lose they will basically have destroyed their player business - no-one is going to buy a product from a bunch of losers. If they win, they will still have a problem - people like Apply and attacking them like this just looks evil.
Cui bono? Who benefits?
Someone rich, who wants to take over the player market, and has a history of launching proxy wars to harass and intimidate its competitors, on feeble or completely false pretexts.
Someone who has been fighting hard to get software patents enabled in Europe, through proxy groups such as the BSA and C4C.
This opinion is simply a gut feeling. Are there any recent reports of deals between Microsoft and Creative Labs that indicate money flowing?
My blog
I like Lessig's (I think) solution: allow multiple competing patent granting companies. The companies must comply with various federal regulations, probably being audited occasionally. Seems like this, done properly, could solve a lot of problems through good old fashioned competition (though it might cause many more problems).
Or how about this: we already press citizens into jury duty yes? Why not press them into reviewing patent applications? It could be like scientific journal peer review. If a large enough group was surveyed, you shouldn't need to worry about self approval too much. Review a patent? Get a tax break (money that otherwise would have funded patent review anyway).
Regarding lawyer speak, and the fact that nobody speaks it: if the average professional in the field is unable to understand the language of the patent application, then it probably shouldn't be granted anyway right? (since it isn't disclosing the patented device.)
As someone who has been involved in the patent litigation process for several years, I can tell you the last thing *anyone* needs is lay people reviewing patent applications and deciding if something is novel is non-obvious.
The vast majority (95% plus probably) of juries I have seen in patent cases find infringement regardless of evidence or common sense. Juries will always grant money when given the chance and they would always grant a patent application.
Also, juries have a hard time determining if shit stinks, let alone trying to determine if widget x is the same as widget y without knowing what a widget is.
The easiest solution to this mess is to move to a registration system, where patent applications arent examined, and just allow everyone to fight it out in court (which is what happens anyway, but this would be without the presumption that patents are valid).