Apple, Samsung, Phones and Software Patents: An Historical Perspective

Last week's court ruling in favor of Apple (AAPL), which granted an injunction against Samsung's sale of phones with "slide to unlock" features, shows that old nuisances—specifically, software patents—die hard in the technology world. It's also a reminder of how the history of Apple and software patents remains remarkably relevant in the present.

In the case, the United States Court of Appeals ruled that certain of Samsung's phones, including the Galaxy S3, violate software patents belonging to Apple. By a 2-1 vote, the judges ordered Samsung to cease selling phones with patented features.

That does not necessarily mean the company has to shelve its existing products. It is free simply to modify them by removing the infringing features. Moreover, the court decision is unlikely to have a major impact on the marketplace, since the devices involved are now several years old.

Still, this outcome underscores just how much force software patents continue to hold in the technology world—and how important they are to companies such as Apple, which seek to maximize profits by minimizing the sharing of ideas between developers.

Software Copyright, Software Patents and Apple

To understand the full context of the lawsuit, it's worth briefly surveying the history of software patents and how Apple has used them in the past.

When software patents appeared in the early decades of computing, they were a radically new idea. Initially, companies had relied on copyrights to limit the extent to which competitors could copy their software. Copyrights protected only code itself. Unless a company could show in court that a competitor had stolen its code, it couldn't prove copyright infringement.

Software patents go much further than copyrights. Patents restrict reproductions of the "look and feel" of a software program. They can make copies of an application's features or interface illegal, even if no code theft occurs.

For companies interested in stifling competition, software patents are a great thing. But they're bad for rapid innovation, since they prevent developers from borrowing good ideas from one another—even if they implement those ideas using original code.

Software patents also give rise to plenty of ambiguity in the courtroom. Unlike copyright cases, in which it is usually simple enough to prove that code either was or was not illegally copied from one program into another by comparing the source code, patents involve a lot of gray area. Determining whether a patent violation has occurred requires subjective interpretation of how similar the look and feel of one program can be to that of another without violating a patent.

Apple's history of using software patents against competitors stretches back to the 1980s. In that decade, the company launched a lawsuit against Hewlett-Packard (HPQ) and Microsoft (MSFT), claiming that the companies had violated patents by copying the look and feel of Apple interfaces in their own products.

Apple eventually lost the case, with the court ruling that the idea behind a desktop computer interface is too broad and general to be subject to a software patent. Nonetheless, the lawsuit engendered a lot of ill will within the software world during the years it raged. It prompted Richard Stallman's GNU project, for example—hardly a natural friend of Microsoft or HP, but an organization that was nonetheless willing to support those companies in this situation—to call for a boycott of Apple.

Stallman and his supporters also launched a "Keep Your Lawyers Off My Computer" campaign, featuring a button depicting Apple as a snake, that aimed to raise awareness of the dangers software patents posed.

Historically, the dismissal of Apple's claims against Microsoft and HP, along with the failure of similar cases in the 1980s and 1990s, made software patents less threatening to programmers interested in innovation. The injunction last week against Samsung, however, shows that the specter of patent challenges has not disappeared.

That's a bad thing for both developers and end users. By preventing the sharing of ideas, courts that uphold software patents make it more difficult for engineers and programmers to create useful devices. At the same time, they make products expensive and less useful for consumers.

Software patents are good for Apple, which has become wildly successful by building a monopolistic ecosystem in which it alone is the major purveyor of both hardware and software. It's harmful for anyone in favor of technology that is as useful and affordable as it can possibly be, unencumbered by artificial barriers to innovation like software patents.