IP Gerrymandering

This week I was discussing with a colleague Apple’s patent on pinch-to-zoom. I remarked on how surprised I was that Apple was able to successfully sue Google for the Android operating system infringing that patent, given that pinch-to-zoom was invented by Myron Krueger around 1972.

My colleague pointed out that Apple’s patent was more clever than that. They knew they couldn’t patent pinch-to-zoom itself, so instead they patented the use of any data structure within a computer program that supports multitouch gestures like pinch-to-zoom.

Since Google’s software (which the court could examine) used such a data structure, Apple was able to successfully claim that it fell under that patent. If Google had implemented pinch-to-zoom without the use of a specific data structure to support it, Apple couldn’t have successfully sued them.

This highlights the differences between inventing and patenting. An invention creates new possible intellectual property, whereas a patent is a claim of ownership of intellectual property — not the same thing at all.

To use an analogy with land, invention is discovering new territory, whereas patenting is claiming where the property lines should go. If you’re a really talented lawyer, you can carve up the property lines in previously discovered intellectual territory in ways that nobody ever thought of before.

You’re not actually discovering new territory, you’re just putting fences in clever places. You are creating new property for yourself right smack in the middle of a parcel of land that somebody else thought was theirs.

It’s kind of like the way Gerrymandering works in politics. Even if your opponent has more votes, you can still win simply by redrawing the boundaries between districts.

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