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Apple's Rubber Band Snaps. What Took So Long?

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On Tuesday, Samsung filed a motion informing US District Court Judge Lucy Koh of an ex parte reexamination by the US Patent and Trademark Office of Apple's "rubber band" patent. The reexamination has rendered the patent, that describes the way lists "bounce" when a user scrolls a list beyond the edge of a device's window, tentatively invalid. The rubber band gun, it would seem, has backfired.

The USPTO did not, as I would have hoped, declare the patent obvious, but rather cited "prior art" in the form of two previous patents that anticipate this one. Strangely enough, one of the patents is in the name of the same Apple user interface designer, Bas Ording, as the "rubber band" patent. (The other was a European patent filed by AOL.) Jon Brodkin at Ars Technica has written a very lucid explanation of this.

Samsung may be able to use this decision, if it stands, to reduce the  damages it owes Apple and challenge injunctions against the sale of some of its products. But there is a larger significance to this development, as well. Whether or not any of the given patents that Apple is charging Samsung of infringing are valid—and many of them certainly are—there is the question of the value of those patents to the device in question. How much of the value, really, of a given infringing Samsung product is represented by the "rubber band" effect? Probably not much.

This is what got me about this particular patent all along. First of all, the little animation effect seems trivial. Tim Worstall raised the notion that we have seen this as far back as Atari's seminal video game PONG. But this second piece, the questionable value of any given patent, was brought up by Judge Richard Posner's rejection of the Apple vs. Samsung case he was preparing to try this summer.

I wrote about these issues this weekend in a post on how to untangle the software patent mess, and I refrained from discussing the rubber band since I had already made that point previously. But to give a brief précis, I think that mobile devices in general have become these huge intellectual property bombs that the big tech companies are hurling at each other—to no one's benefit but the lawyers.

An expert I talked to estimated that a contemporary smartphone contains 20 to 30 thousand patents! And these devices could, most probably, operate in an almost identical fashion with far fewer patents, but the current patent system rewards this sort of IP loading. What we need, I think, is to establish a patent baseline for each of these major types of digital devices, smartphones, tablets, music players, laptops, desktop computers, etc. that adjudicates the basic patents required to make a functional device.

What would this look like? I've likened it to an iTunes store for patents. Imagine you opt in to the bases set of patents for a calculated price per device. Those dollars or pennies are divided proportionately between the holders of the underlying patents, just like with music royalties. The base set would have a set term after which all of the patents contained therein would become open source in the public domain. By that point, it would be assumed, there would be another set of patents required for the next level of functionality of the device that would be similarly packaged.

Beyond the base set of patents, tech companies could pick among existing patents to solve their engineering challenges, or develop their own solutions. But they could look at the, for instance, three cents that a given patent would cost them per unit and decide if it was really worth inventing their own work around. The higher the cost, the more motivation for invention, but also, ostensibly, the gnarlier the problem.

The point of this little though experiment is to ask how can we focus our attention on the innovation that really matters and not get tangled in these trivial rubber bands? If Apple can use patents to "slow down the clock" in order to gain advantage over Samsung or Google, what must the effect be on smaller tech companies? They haven't got a chance. Although all of the big tech companies got where they are through disruption, they are now in the position of trying to micromanage innovation.

It is the history of history that disruptors eventually get disrupted.

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