Patent system on trial in Apple, Samsung case

SAN JOSE – The patent system, as much as anything, is what’s on trial in the Apple vs. Samsung case about to go to the jury here.

In my opinion, Apple did something novel with the iPhone: It delivered a handset that gave you access to an open Web browser in a way that was easy to navigate. But that’s not what’s at issue in this case.

I fault the patent system for not being flexible and easy-to-use enough to capture what should be at stake here. The patent system is stuck in old, arcane language. It’s deluged by a daily tsumani of applications and old patents, many of which were granted by examiners who lacked the expertise, time, systems—and budget--to conduct thorough reviews.

In the fall of 2007, I was talking to Sun co-founder and Google angel investor Andy Bechtolsheim backstage at a conference. He pulled out his iPhone and exclaimed, “Finally somebody got it!”

He went on to talk about how there had been many fine handsets before but never one on which you could browse the Web. Past handsets had screens that were too small, or they only accessed “walled gardens” created by carriers, or they had user interfaces so inscrutable that users gave up in frustration before they got to a useful page. Often the cellular networks and apps processors were just too slow to deliver and render a Web page in a reasonable amount of time.

The iPhone was the first device to bust through all that and deliver something so compelling it became the new personal computer.

Some of that achievement had nothing to do with Apple’s invention of anything. Cellular networks and apps processors got more powerful. Low power screens got bigger and brighter. Apple didn’t invent these things, but it was the first to see, understand and implement well something based on these trends.

I give Apple kudos for its Aha! moment and its excellent execution. But can any of that be expressed in today’s patents or trademarks? There’s the rub.
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