Smartphone War: What Is It Good For?

The Wall Street Journal (WSJ) has noticed something about the ongoing patent war in the smartphone industry: it’s not accomplishing much of anything.

Philip Elmer-DeWitt took the WSJ to task for missing the important distinction between Standards Essential Patents (SEPs) and other patents.

But I think there’s still another point that the WSJ and Mr. Elmer-DeWitt missed: the patents at issue in the Apple v. Samsung case demonstrate that patents are not motivating innovation in the smartphone industry.  Rather, the opposite is true.

Promoting the useful arts, that is, “innovation,” is the reason for the patent system. Without a strong patent system, we’re told, we won’t be incentivizing innovation. We won’t have the benefits of the sharpest minds and the most dynamic companies, who simply won’t want to risk innovating without patent protection.

The Smartphone Wars should make everyone question whether patents are really serving their intended purpose.

Did Apple need its patents as an incentive to create the iPhone? The iPhone was announced on January 9, 2007. For all of the patents Apple asserted at trial against Samsung in the U.S., here are the issue dates:

With one exception, not one of these patents was even filed until the iPhone was essentially done. And, with the same exception, none issued until the iPhone had been on the market for some time. Oh, and that older patent, D504,889, was one that the jury found that Samsung did not infringe. 

In fact, Apple launched the second version of the iPhone, the iPhone 3G, on June 9, 2008, the iPhone 3GS on June 8, 2009, and the iPhone 4 on June 7, 2010. So the iPhone 3G was launched before Apple received all but one of patents it asserted at trial against Samsung, the iPhone 3GS was launched before Apple received four of the seven patents, and even the iPhone 4 was launched before Apple received the last three patents.

Where is the incentive here? Apple launched the iPhone and subsequent versions without knowing if it would receive any of these patents. Clearly, Apple was going to launch the iPhone, and keep improving it, with or without the patents.

It’s also interesting to note that Apple’s design patentAs distinct from a utility patent.  A design patent protects only the ornamental design or appearance of an article of manufacture, but not its structural or functional features.  An ‘article of manufacture’ is a broad term which may extend even to computer icons.  Like utility patents, design patents must be nonobvious but this standard is harder to apply to designs. filings went up just after the iPhone came out, not before:

If patents were a driving force, one would expect that Apple would have delayed its product launches until it secured patent protection. Instead, Apple went ahead anyway. (The New York Times did a story this past fall on Apple’s patent strategy, which also supports the argument that Apple’s creativity was not motivated by the patent system.)

To be sure, Apple used the patents it eventually got as a tool to try to protect its competitive position, but it’s hard to argue that Apple would have done anything differently with respect to its product line without those patents.

So tell me how exactly Apple was motivated by patents to create the iPhone?