One of Steve Jobs’ legacies is his hatred for Android, which he labeled a “stolen product” over which he was “willing to go [to] thermonuclear war.” Although Jobs is dead, the patent fight between Apple and Google (as well as Samsung and other Android-based competitors) lives on, with the legal industry making a tidy sum on the situation. The entire situation basically comes down to claims of “They stole our idea!”—that is, software patents. Increasingly, however, the entire patent system (at least where software is concerned) is looking frayed around the edges and thin in the middle; so is there any way to stop a wasteful and possibly vengeful fight between companies that can and should expend more effort on their core businesses? The answer may be a simple, but not-so-simple, yes.
Can Ideas Be Stolen?
We tend, especially as children, to be highly bothered when someone imitates us—particularly if we think our thoughts, words or activities are particularly special. Thus, we might indignantly shout, “He’s copying me!” In everyday life, copying might show a lack of originality, but it in no way detracts from the originator’s enjoyment of his or her own ideas. Ideas are not scarce goods like physical property, so they can be replicated ad infinitum without any change in “supply” or usefulness to their originators. Thus the question is, can ideas be stolen?
The answer is no. Ideas can be imitated, but not stolen, because they are not taken from the minds of those who have them already. In the same way, if your neighbor sees your car and buys or builds one exactly like it—down to the minutest detail—he has not stolen your car. Your car is still yours to use in any way you see fit. Sure, you may be annoyed (a la Steve Jobs), or you may think your coolness factor has fallen, but your ownership of that car conveys no right to control what others think of you. This situation is far more parallel to that of ideas than is the situation where your neighbor actually steals your car.
The Visceral Factor
Conceptually, the notion that an idea can be stolen is unjustifiable—but people nevertheless tend to have a visceral sense that whoever thinks up something first has certain claims over it. Business owners who have a novel (but perhaps unpatentable) product often feel annoyance at Johnny-come-latelies who dilute a profitable market. The result is that these business owners generally cannot milk a single product or idea indefinitely; they must come up with new ideas to keep their customers happy and their companies vibrant, and they must also maintain standards of quality and fair pricing.
But in industries like software, patents put the weight of the government behind the “owners” (meaning whoever first fills out the right paperwork and pays the right fee) of ideas, establishing monopolies in the truest sense of the word. And given that the fees effectively impose barriers to smaller companies and individuals, large companies have every incentive (and usually the wherewithal) to patent every potentially profitable idea, whether they plan to use it or not, to hobble competition. In other words, no more need to worry about someone else undercutting your price or offering higher quality—unless, of course, they pay you whatever you ask.
Innovation: The Last Refuge of Patents
The patent system does not attempt to grant property rights on the basis of any kind of underlying principle, such as that the originator of an idea has a claim to it. The law instead is pragmatic: it is supposedly designed to promote innovation by guaranteeing a return to those who come up with good ideas. But what about an idea like, say, a new scientific principle or theory—even a potentially profitable one? Those ideas are excepted from patent protection, since they might hinder so-called scientific progress. This distinction, however, is extremely tenuous.
Either way, the argument from innovation lacks any substantial backing apart from anecdotal (and usually hypothetical) evidence: imagine a little guy who comes up with great idea X, only to have it stolen by MegaCorp and so on. The first-mover advantage is often discounted or ignored in these hypothetical scenarios, as is the need for wisdom on the part of an inventor to keep his or her idea secret (perhaps not from the NSA, though) until it is ready for production and sale. Absent any real evidence that patents promote innovation, however, support for the current system (or a reformed version thereof) essentially boils down to a hodgepodge of appeals to a vague sense of “fairness,” false parallels with physical property and hypothetical situations that lack broader support in reality. Innovation has proven to be an elusive justification for the patent system, particularly in software.
Apple and Android: Defusing the Hydrogen Bomb
Apple’s operating system is clearly different from Android. So what is the company’s complaint? That Google made a better operating system, even if it does involve similarities with Apple’s product? Because the battle is constantly being fought in court rather than among consumers (who should be the ones to determine whether original ideas or imitation ones should be successful), judges must decide ridiculous matters of fact such as whether one software routine is too similar to another and thus in violation of what might be a very fuzzy patent claim.
Ironically, the patent system—much unlike physical property—has nothing to do with maintaining the supposed owners’ rights to do what they will with their “property” (ideas). Instead, it has everything to do with limiting the ability of others to do anything with those ideas. Returning to the automobile analogy, imagine you bought a car just like your neighbor’s, and then your neighbor sues you for infringement of his idea to buy that car first (or whatever the specific claim). You would then be forced to get rid of your car or pay your neighbor an extortionate amount. Your pleas of “But I didn’t take anything from my neighbor!” would fall on deaf ears. This is what software companies are doing to each other in court, instead of focusing on their product-development efforts.
One solution is to eliminate software patents altogether. Most recently, New Zealand took this step—ironically, to promote innovation. ZDNet cited the Commerce Minister Craig Foss as saying that this change is a “significant step towards driving innovation in New Zealand.” Although dissatisfaction with the patent system in the U.S. is growing, such a drastic change is unlikely at this juncture. The result is that thermonuclear war between Apple and Google is inevitable. Perhaps the aftermath, however, will be enough to convince legislators to reconsider their stubborn (and well-financed) support for the system that caused all such legal trouble at the expense of consumers.
Horrifying image courtesy of U.S. Department of Energy