Picasso vs. patents: Good artists copy, but can great artists steal?

Steve Jobs, Apple's late CEO, loved the Picasso quote: "Good artists copy, but great artists steal." According to Jobs' biography, the famous Apple computer of the early 1980's that came with a mouse and graphics used technology that was actually developed by Xerox. Yet, Jobs became furious when Microsoft quickly adopted the same interface.

New design elements can be patented. For instance, the "pull-to-refresh" gesture was originally developed for an app named Tweetie, a client for the social media application Twitter. It took so long to get the patent, however, that virtually everyone adopted the gesture in other apps. The inventor claims he obtained the patent "for defensive purposes only", which means that he patented the concept not to sue others, but to ensure that someone else couldn't patent the idea and make him stop using it.

It takes the U.S. Patent Office over two years, on average, to examine a patent application after it is filed. Many applicants take advantage of a "provisional" application process that further extends the time out to 3+ years. Think about the user interface for mobile devices and social media sites from three years ago. They'd seem awfully clunky now, wouldn't they?  

Patents are one way to keep others from stealing your ideas down the road, once you've invested time and money in developing a product, but it takes a concentrated effort to keep up with advances in technology. It takes but a simple glance at the business section of the newspaper to see the patent litigation wars between Apple, Samsung, and Google — these tech giants are duking it out using huge patent portfolios. Oftentimes, these cases result in settlements where the parties cross-license patents to one another to the benefit of all concerned.

So, good artists may copy. But whether they can steal depends on how many patents they have, how soon they were issued, and how much the technology has developed (and moved on) between the time the application was filed and when it issued. (Don't forget that when someone gets caught stealing, they usually have to pay restitution — and some patent damages awards are in the billions of dollars!)

Because patents can take so long to develop, I typically recommend that my clients try to envision where their business will be in 5-8 years. If you have a unique product or service, try to figure out what changes and improvements you'd like to make over time, and include those in the patent application. Later patent applications (called continuations) can further develop more general ideas into concrete, patentable inventions that freeze out competitors.

Please let us know if we can help with your patent needs.