In the wake of the $1.2 billion decision, many have questioned whether design patents (covering the appearance of a product) and utility patents (covering the functionality of a product) are hurting consumers and innovation rather than helping.
As previously noted in my post "Patenting...Real. Comfortable. Genes?", the reason we have a patent system is routing in the U.S. Constitution.
The Framers of the United States Constitution knew of the importance of technological progress.
The Congress shall have the power...This provides inventors with an incentive to create new products and processes. It also gives companies and investors (e.g. venture capitalists and stockholders), incentive to invest capital looking for a return on their capital investment.
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. (U.S. Constitution, Article I, § 8, clause 8).
Congress has limited the duration of the monopolistic protection. In return for the protection, the inventor must disclose his or her invention to the Patent Office which, in turn, discloses the information to the general public.
The Patent Act was drafted to accomplishes two goals. First, it encourages innovation and discovery through its incentive of limited monopoly Second, the patent system promotes the disclosure of useful technology to the general public by putting it in the public domain.
Opponents of design patents argue that the purported designs are too simple and therefore should be left in the public domain. For example, with regard to Apple's design patents covering the curve design for its iDevices, opponents argue that these are simple design choices which lack any (or sufficient) creativity and are certainly not worthy of exclusivity which a patent provides. Opponents of utility patents for mobile devices and software running on such devices make similar arguments saying that the software being patented lacks sufficient inventiveness to be worthy of patent protection. Further, some opponents believe that patenting software and mobile devices stifle innovation of other software engineers and device manufacturers who fear lawsuits for patent infringement from the patent owner if they produce their own software or device.
Proponents of design and utility patents for software and mobile devices assert that the software and device companies need patent protection for their products. These companies would argue, as Apple did, that they spend millions of dollars to research, develop, test, refine, re-design, and market their new products. Absent patent protection, anyone could use the million dollar discoveries without having to invest a single dime. Further proponents of design and utility patents for software and mobile devices say that no one would invest in companies if anyone could use their discoveries for free. As a result, high tech companies would cease to develop new and innovative software and devices. Therefore, without the financial incentive of patent protection, new and innovated software and mobile devices will never be made. Accordingly, proponents argue that software and mobile device patents accomplish the two goals of the Patent act, offering both economic development and providing a pathway for new software and products.
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