Most people working in the technology industry have heard plenty about Google and Apple's ongoing patent war in the smartphone space. (See: What Apple Win Means for the Future of Smartphones.) But that conflict is far from the only one in the mobile arena. Indeed, Nokia was the first major player to kick off the smartphone war when it sued Apple back in 2009. Since then, lawsuits have been flying back and forth between the industry top players, startups, and so-called "patent trolls." (See: Trolling for Dollars With Internet Patents.)
At the heart of many of these legal complaints are user interface (UI) patents. The UI patent is a curious beast. The premise is that a certain animation -- as depicted in words and images -- is patentable. Oftentimes (but not always), input patterns are also covered in the patent. For example, Google and Apple have both filed or been granted patents for unlocking gestures, covering both the gesture and ambiguous graphical representations of it.
While the smartphone patent war may be mere noise to observers in the web-development or IT spheres, the rise of UI patents is something that should be of great concern to them. Currently, large web application firms like Google, IBM, and Amazon have largely avoided patenting animations/user interface elements, and in general, website UI has not been an area tread too heavily by patent trolls.
But that could soon change. Traditionally, UI patents were impractical due to the litany of prior art. The saying "it's all been done before" is perhaps true in no one place more so than in the software and web-design industry. Whether you're building a website or making an application, chances are someone has done the same animation and come up with the same input mechanism you just did.
The problem is that prior art is no longer the obstacle it once was, in part because the US Patent and Trademark Office and other global patent offices are flooded with a deluge of filings, making thorough prior art searches practically impossible. A perfect example of this was Apple's recent PageTurn patent, which depicts an animation that is precisely identical to a demo site from Hewlett-Packard, made in 2004 when iOS, the iPhone, and the iPad were a mere twinkle in Steve Jobs's eye. Such patents are far more dangerous than traditional patents, as the ubiquity of UI features makes it possible to patent something nearly everyone infringes upon.
The current UI patent binge began, partially, at the level of startups and patent trolls that used shell companies to file seemingly preposterous patents. These parties found that when they (in mass) attacked large companies like Microsoft, IBM, Google, or Apple, they could make it cheaper to settle out of court than to fight the case and invalidate the "junk patent."
Harassment by the patent troll cottage industry eventually caused the top players in the mobile device market to take note. Now they're using similar tactics in what is arguably an anticompetitive effort to remove their rivals' products from the market.
The Internet and software markets could easily follow a similar path if something is not done. It may start quietly with patent trolls pursuing junk lawsuits against large Internet firms. Such suits may never be heard of publicly, as settlements are not often widely disclosed. In time, if things go in that direction, large online applications vendors may look to use UI patents as a potent weapon against their rivals. After all, just because a patent is "bad" doesn't make it less dangerous.
Paul Sherman, writing for UX Matters, made an impassioned plea back in 2007 against UI patents. That column seems prescient amidst today's market chaos. IT and software industry observers should take note because that same chaos could soon be in your backyard.
In the case of rampant patent litigation without knowing a precise dollar breakdown of how much of the money from settlements or damages ultimately goes to plaintiffs, we can still draw some conclusions:
- Ultimately, top players in a market will at best break even as their rivals will practice the same tactics they do.
- Attorneys will be the only parties to enjoy long-term net gains.
- Small players will be excluded from the market.
That list doesn't sound good unless you happen to be a litigation-oriented patent attorney. Industry observers take note: It's time to abolish UI patents.
— Jason Mick is senior news editor at the independent tech news site DailyTech.