Wednesday, November 16, 2011

Slide-to-Unlock --> When Geniuses Apply for Patents

The internet LOL’d when news broke out that Apple has been awarded a patent for Slide-to-Unlock—a design element apparently so trivial that almost every smartphone user blushed upon hearing the news. On a serious note, many complained that the legal practice of granting patents to components, instead of actual devices, doesn’t make sense. Defenders of Windows 8, which uses the same mechanism specified in the patent, claimed that since the implementation is "different" there is no issue of infringement.

Is there anything wrong with the Slide-to-Unlock patent? Let me first state that I’ve never been to law school, and I understand that arguments for patent laws are not always trivial, but let me tell you two remarkable stories from history that might make you lean in favor of the patent.

The first story begins in Scotland; the year is 1769. James Watt has invented a remarkable steam engine that has more than thrice the efficiency of the best existing engine. He is applying for a patent. The specifications in his patent application are different from most patents filed in his time. Six decades earlier, Thomas Newcomen had filed a patent application that included every detail of his breakthrough engine: pipes, valves, and whatnot. But Watt wants to receive patent protection for merely a single component: the condenser. His patent does not include the entire design.

Thanks to the sanity of the patent office, Watt was granted the patent. Needless to say, there were critics. They claimed that Watt is willfully concealing his invention by an incomplete specification. Even today, some cite the patent to question his status as a hero of industrial revolution, alleging that all he did was invent a small component of the steam engine.

Such claims are absurd. That small component, a separate vessel for condensation, allowed the cylinder to be kept warm such that no steam was wasted in the next cycle. This is what essentially made Watt’s engine remarkably efficient and superior to any previous engine. As Watt himself explained*, he did not specify the other components because either those already existed in existing engines or he didn’t regard the improvements he made in those to be “significant”. His purpose was not to conceal his improvements in those components, rather to only protect what was truly essential. Sure enough, later when he or others made enough improvements in other components, they filed separate patents.

Our second story begins in Dayton, Ohio; the date is March, 1903. The Wright brothers are applying for a patent. It will be nine more months until they fly the first powered airplane in man’s history. But they are confident that they will succeed. Like Watt, they go one step further: their patent application specifies, not a component, but a method—a very uncommon practice at their time. Their application describes the method as controlling of an aircraft by changing the surface angle near the tips of wings.

After an initial rejection, and with the help of an attorney, the US patent office granted their patent. Here cometh the critics. Wright brothers had used wing-warping (twisting) to change the angle near wing tips. One of their rivals later used another method (ailerons) to change the angle. Critics claimed that this does not constitute a patent infringement, and that the method deserves credit by virtue of being "different".

Apart from the fact that the Wright brothers’ patent explicitly stated that the angle of the surface could be changed by any manner, the claim is baseless because an invention, by its very nature, involves an identification of essentials. For example, it is not essential to a telescope whether its scope is made of metal or wood. Galileo invented the telescope. He didn’t invent a wooden telescope! Likewise, the Wright brothers invented the method of changing surface angle as the key to achieving sustained flight. Whether the manner to achieve this is through wing-warping or ailerons is not essential to the invention.

From the two stories, it should be clear that (1) if patents were granted not to components, but entire devices, as some critics of Slide-to-Unlock patent would prefer, it would require the sacrifice of James Watt to his critics, and (2) if a rival is free to implement a patented method in another manner, as some defenders of Windows 8 would prefer, it would require the sacrifice of Wright brothers to their opponents.

Rational patent practices didn’t develop easily. Because of the unconventional way in which they specified their patents, both Watt and the brothers had to pursue lengthy legal battles to protect their inventions from infringement. Some criticize them for spending so much time in courts. But I think it is morally right to defend your property, material or intellectual. As Wilbur Wright righteously wrote in a letter to an aviator, "[it] is our view that morally the world owes its almost universal use of our system of lateral control entirely to us. It is also our opinion that legally it owes it to us." Neither Watt nor the brothers were famous or influential before their respective inventions; they took a bold, but sensible, step when they filed for patents in a manner that they saw effective. The genius of Watt and Wright brothers extends beyond their inventions—they were instrumental in establishing patent practices that will protect inventors, including those of Slide-to-Unlock, for centuries to come.

*A Plain Story (1796)—James Watt’s account of how he came upon invention, and a response to his critics.

Update [Nov. 17, 17:25 UTC]: Slightly edited for clarity.


  1. Interesting post.
    It does a raise a question: when is a specification too abstract to be patented?

  2. Identifying the essential can be tricky. It isn't obvious how to go about changing the wing-tip surface angle of an airplane wing. Coming up with a specific implementation could require significant creative thought, and the value created by that thought should be protected by law.

    The 'slide-to-unlock' case is different -- once the widget concept is in place, the coding details that make up the implementation are not significantly creative in their own right, which means varying the implementation isn't relevant to whether one is infringing.

    Perhaps there should be multiple patents in play. I could see a justification for distinct patents for "controlling an aircraft by changing the wing-tip surface angles", "changing the wing-tip surface angles of an airplane by wing-warping" and "changing the wing-tip surface angles of an airplane by aileron".

  3. @Rrealist Good question. It'll be interesting to find out what current patent laws say with regard to the issue of abstraction. I think that as long as a patent specifies what causal factors were introduced to obtain a previously unattainable effect, there is no danger of it being too abstract.

    In Watt's case, "condensation vessel separate from the cylinder" (the cause) is introduced to "eliminate condensation cooling from the piston cylinder" (the effect). It's impossible to make it any more abstract. For instance, he can't claim that the causal factor being introduced is "cooling to condense steam" because that alone wouldn't produce the unique effect that his engine achieves. Besides, that was already patented by Savery in 1698, and was an essential factor in existing engines.

  4. @Kyle I totally agree. I think ailerons were different from Wright brother's method of changing surface angle near wing-tips, and should have been granted a separate patent.

    If that happened, someone using ailerons would have rightly paid royalty to both Curtiss (who invented aileron) as well as to Wright brothers (for using wing-tip realignment as a means of controlling the aircraft).

    The opponents of Wright brothers, however, thought that the brothers deserve no royalty if someone uses ailerons.

  5. My understanding was the Watt's company produced relatively few steam engines while it's patent was in effect, and that they mostly made money by the royalties paid them by others. Once their patent expired, they produced many more steam engines, and enormously more steam engines were produced overall. I can't find the reference though. There is this blog post I found on it, but I'm sure it was in a book somewhere as well:

    I'm not so sure about what effect the Wright's patent had on the history of aviation, but I don't think it is an open and shut case that patents actually encourage innovation or significantly increase the money earned by an inventor (particularly the former).

  6. @Josh I am aware of the criticism. The error it embodies is a reliance on a collective standard of value (social utility or innovation). Rather than advocating that patent laws be reformed such that inventors do not have to spend the rest of their lives defending themselves from looters, the claim is that we should do away with intellectual property rights altogether. Does it not ring a bell of a thick novel written by an immigrant from Russia?

  7. @Josh James Watt and Michael Boulton (they were in business together, read The Lunar Men by Jenny Uglow if you're interested in the history of them and their time period) filed the patent before Watt actually had the condenser working as promised, so, yes, only a very few experimental engines were erected before the patent was scheduled to expire. Boulton then used some incredibly heavy-handed monopolistic practices to get the English government to do things like extend and broaden the patent, preventing other engine companies from building engines with any kind of condensor and thus essentially forcing them to stick with the old inefficient engines. Watt was hardly a hero of unrestrained capitalism. He and Boulton did quite a lot of restraining on their own.

    I personally suspect that the major problem with patents as they are often used is that they place too much emphasis on the value of the "original" idea as opposed to the amount of work (and thinking!) that goes into actually making use of said idea. It is similar to the communists who worship "toilers" but execrate "merchants"--not realizing that the merchant does contribute hugely to the productive process and earns his profits just as the "toiler" does.

    One of the things I've learned over my creative lifetime is that an idea sans implementation is essentially worthless, which is why patents (and copyrights) can and must focus on details of implementation, not just ideas or "methods". And yes, this may very well mean that the person first out the door with the idea may not be the one who makes the most money. What's wrong with that? You may come up with a revolutionary new theory in your garage, but if you aren't prepared to go into production, why are you inherently more deserving of profits than the person who figures out how to create a product and has invested years and millions in production facilities, retail relationships, and who-knows-what-else?

    What patents often seem to do is to seize on one tiny part of an enormous productive process as the "generative" part, and accord it an overlarge share of the value. I'm not saying they should be abolished--far from it! I think, however, that they are an inferior tool for determining when something of value has, in fact, been stolen. They do not constitute a proper standard of proof of ownership.

    One reform that could seriously help right off the bat, though, is if the patent duration for "methods" (such as the slide-to-unlock business) was set at a radically reduced time duration, say TWO years instead of the standard length. This would give a revolutionary method-creator time to license and thus profit from his method, without irrationally tying up everyone who came up with a slightly different (and possibly superior!) implementation. If the original idea man's implementation really was inferior, the new one would rapidly take over on expiration of the "method" patent.

  8. I have used slide-to-unlock briefcases for half a century. A software copy of a device that has existed in hardware for a very long time is not an invention.