Why Steve Jobs Started the Patent Wars

Steve Jobs loved being first. Throughout his life, he generally had the vision and capacity to make that happen. It's no surprise then that his fingerprints are all over the brewing patent war, the one that has engulfed tech firms around the world, crescendoing to a fore this past August in Apple's landmark billion dollar victory against Samsung. Apple convinced a jury that Samsung had copied the company's coveted iPhone — by far its biggest moneymaker — by lifting protected ideas like "slide-to-unlock" and "tap-to-zoom."

Patents were always meant to foster innovation. The thinking goes: if people and companies can't protect their ideas (and monetize them), there's less inclination to see them through. Instead, for the first time in their history, Apple and Google spent more on litigation over who-copied-who than research and development. It's convenient to blame Apple, who easily fits the part of villain, finding itself regularly in the courtroom with major competitors: Nokia, HTC, Google, Motorola, Samsung. But for Apple (and Jobs), this was the culmination of hard lessons learned. Just as Jobs didn't actually invent the smartphone or the tablet computer, he wasn't the first to leverage a faulty patent system. But he certainly took it to the next level.

Back in 2006, Apple settled with Creative, maker of the Zen personal music players, for $100 million. Since the blockbluster iPod was a "portable music playback device," it violated a patent Creative held from five years earlier. "Creative is very fortunate to have been granted this early patent," Jobs said in a statement afterwards.

Awakening the monster

From there, Jobs decided to patent everything to avoid such future humiliations. "His attitude was that if someone at Apple can dream it up, then we should apply for a patent, because even if we never build it, it's a defensive tool," Nancy R. Heinen, Apple's general counsel until 2006, told the Times. As they reported it:

Soon, Apple's engineers were asked to participate in monthly "invention disclosure sessions." One day, a group of software engineers met with three patent lawyers, according to a former Apple patent lawyer who was at the meeting. The first engineer discussed a piece of software that studied users' preferences as they browsed the Web. "That's a patent," a lawyer said, scribbling notes. Another engineer described a slight modification to a popular application. "That's a patent," the lawyer said. Another engineer mentioned that his team had streamlined some software. "That's another one," the lawyer said. "Even if we knew it wouldn't get approved, we would file the application anyway," the former Apple lawyer said in an interview. "If nothing else, it prevents another company from trying to patent the idea."

And so by the time Jobs had decided to go "thermonuclear" on Android, Apple had collected a sizable armory of ammunition. One key bullet, patent 8,086,604 — the one for "universal" search — was approved only after 10 requests to the patent office spanning half a decade, according to the Times report. If Apple's process seems absurd, it's only because they're playing a system that looks ever more broken.

Overworked and confused

And now the patent system is being inundated. The patent office last year received over half a million applications, up 50 percent in the last ten years. The approval process is by no means scientific. Like adjudicating a figure skating competition, whether or not a patent makes it through can be highly subjective. At the very least, the U.S. Patent and Trademark Office needs more resources, but even that doesn’t go far enough. "I don't think there's enough money you could give them or enough administrative reforms you could push through," said Christopher Sprigman, an intellectual property lawyer and author of the Book The Knockoff Economy: How Imitation Sparks Innovation.

For Sprigman and others, this goes beyond overworked patent workers, it's about fundamental issues in a system, designed over a century ago to deal mainly with physical things. While it still makes sense in areas like pharmaceuticals, it's becoming less clear elswhere, especially when technology is involved. "I'm not a great believer in design patents to begin with," Sprigman told Motherboard in August. "Under current circumstances, they're not terribly valuable as drivers of innovation, they're much more useful as litigation chips. It's a twilight struggle, to make sure that the courts actually follow the law."

"Then in terms of patents generally, frankly, I think people have to wonder. In software, people are starting to question if patents make any sense. Are they relevant? Do they actually incentivize enough innovation that it's worth having this very costly, cumbersome, litigation system? I wouldn't be surprised that if this melee expands into software, if the market becomes less competitive, less vibrant and less consumer friendly."

The esteemed Judge Posner echoed these sentiments earlier this year. “It’s not clear that we really need patents in most industries,” said the prolific and outspoken jurist, after throwing out the case between Apple and Motorola. Issues like "slide-to-unlock" clearly tickled the U.S judge. "Apple's argument that a tap is a zero-length swipe is silly," he said, dismissing the case with prejudice, meaning that no party could re-file. "It's like saying that a point is a zero-length line."

Both Posner and Sprigman believe that the first mover advantage may be enough to incentivize innovation. "My son just switched from an Android phone to an iPhone, he's thirteen," Sprigman explained. "His comment to me was that it integrated so much better with the platform. That's a big advantage. Whatever platform corresponds to the phone that you invested in first is probably the platform that you stick with. This doesn't mean that people don't change platforms, but platforms are pretty sticky. Being the first mover really helps."

Apple continues to benefit from this stickiness, and the iPhone 5 has been an undeniable hit. But business wasn’t didn’t always revolve around a multi-billion dollar patent war, as Jobs made clear in 1994, waxing poetic about the drivers of Apple's creativity (hint: it has something to do with great artists stealing). Stung by the system, his beliefs skewed, where innovation took a backseat to protectionism. And as we know, when Jobs leads, others tend to follow.

Follow Alec on Twitter: @sfnuop