Jim Moore’s blog: Innovation, Strategy, Public Policy

Matthew Ingram and I had an
brief exchange about the Apple/Creative settlement in comments
to his post on the story.

Matthew said

Thanks for the comment, Jim.
I am definitely in favour of patents, and there’s no question that they help
smaller companies level the playing field with larger ones. But don’t you think
there was some level of obviousness about the navigation scheme that Creative
patented? Just curious.

Matthew makes a very very important point.  One
can be pro-patent–as I am–but against bad patents.

So I went back this morning and studied the
Creative patent, which is available here.  I am not qualified to evaluate the obviousness of the patent in any
legal sense, as I am not a lawyer.  I am an inventor and student of
innovation.  On the other hand, I do care about patents and patent
quality, so I found it interesting to examne the patent from this
standpoint.  An invention, to be worthy of the name, should be an original and creative
contribution to society.

Reading the patent I felt is a sense of obviousness of the form “wow, that seems
simple.” This, however, may be an indication of the value of the
invention, rather than a defect in the process of issuing the patent. 
The Creative patent seems obvious because the solution has become a
defacto standard for digital media players, especially the iPod. 

Honestly, I feel that the inventors made a real contribution.  What they did was apply personal computer jukebox ideas to the user interface on a personal storage device, and in essence invented the personal media player. That seems original to me.  What Apple seems to have done is take that idea and combine it with a music download service and a personal computer jukebox, to create an even fuller solution, and the basis for a successful business ecosystem.

I am not qualified to comment on the obviousness of the patent in the legal sense.  A patent must pass a “test of obviousness” in order to be awarded.  This means that the patent must not simply be an extension of ideas already invented.  A new form of car engine might be patentable, a larger version of the same engine would not be.  In order to evaluate the legal obviousness of the Creative invention, one needs to review the prior art that either existed
at the time in the marketplace, and/or that had been published at the
patent office.  If there existed at the time of the patent other
versions of a menu system of this nature for small devices, these would
be, I believe, the sources on which a legal argument for obviousness
would rest.

It is worth noting that if there were prior art of this sort, it is
likely that Apple’s attorneys would have found it. And if there were
issued patents that made this invention seem obvious, Apple or others
would likely have brought that information forward.  In addition, if a
third-party small company had held such patents, it is likely Apple
would have tried to buy that company.