We all heard many times that software patents are bad. The last week’s ruling on Apple vs. Samsung case was quickly show-cased as yet another example of complete lack of any reasons behind software patents. Yet many (including myself) agree that Samsung indeed copied Apple’s design. What options does Apple have to stop it beyond software patents?
The first and only option that comes to mind is the copyright law. As any art work, Apple’s designs are protected by the copyright law. And it seems natural that Apple should go after Samsung using the copyright law. However, the copyright law includes two key provisions that make it impossible: idea/expression differentiation and fair-use doctrine. Thus, Samsung doesn’t violate the copyright law unless it copies Apple’s icons pixel by pixel, or builds its phone with the exact iPhone dimensions and buttons.
The patents and the copyright law in the current form are outdated and don’t match the reality of the fast moving and fast copying 21st century. However, if as a society we want to reward inventors and original artists, then we need to find a way to fix patent and copyright laws. The other proposed options (e.g. government grants/prizes) are even worse solutions to the problem. And it is not too hard to fix them. First, we should drastically reduce the protection period to 1 year or may be even less. The long protection period provided by both the patents and the copyright law actually shifts the risk/reward tradeoff in the wrong direction and makes it easier for companies or pirates to decide to infringe on patents or copy the digital content. Nobody in 21st century is going to wait years until patent expires or the art work goes into public domain. Second, we should build into the patent law an automatic way to license the patent and pay reasonable licensing fees w/o the need to negotiate with the patent holder. Third, we should include “fair use”-type clause into the patent law to ensure that university and other research organizations can freely use patents. And the last but not the least, we should drastically speed up the approval of patents. Patents should be granted automatically and review on patents should be performed only if someone wants to challenge them. The patents database will be the place to go to find out how to solve a problem to avoid duplication of efforts, not a sacred place you (as engineer) should never look at because of the fear to be sued for knowingly infringing on a patent.