Creative claims

What I know about patent law, you could fit on an 8.5-by-11-inch sheet of paper and still have about 8-by-10-inches worth of doodle space left over. In fact, you’ll find “patent law” wedged between the entries for “Parcheesi, rules of” and “Pawnee City, Nebraska” in Volume 16 of Things Phil Knows Very Little About . Which is a round-about way of saying that, for all I know, Creative Technology holds an iron-clad patent for “automatic hierarchical categorization of music by metadata” that does cover the iPod as the company claims, and that the sight of Creative employees toting huge sacks of royalty money out of One Infinite Loop will soon become a familiar one in Cupertino.

But I doubt it. Because while I don’t know much about patent law, I do know a little bit about human behavior. And the timing and tenor of Creative’s self-described “celebration” Tuesday suggests that this latest development is more sizzle than steak.

First, the matter of timing: Creative acknowledged during Tuesday’s press conference that it received this particular patent from the U.S. Patent and Trademark Office about a month ago. So why sit on the news for that long, if it’s such a big deal? Why, because the press has been so focused on the ongoing iPod patent dispute between Apple and Microsoft, said Creative Labs president Craig McHugh, spurring his company to take action.

Well, OK. But the Apple-Microsoft kerfuffle has been percolating for more than two weeks now. It takes that long for Creative to type up a press release that reads “’Fraid not, fellas?” No, I’m guessing that something else motivated Creative to get chatty about its patent, something like—and I’m just spit-balling here—the company’s arch-rival announcing an iPod-related press event the day before. In fact, this is so obviously a attempt to steal some of Apple’s thunder, I’m a little bit surprised Creative executives didn’t just wait another week and show up during Steve Jobs’ presentation next Wednesday, waving a copy of the patent over their heads and demanding that the Apple CEO pay up on the spot.

Whoops—probably just planted the idea in their heads.

Creative has plenty of motivation for getting the media to jabber about music-player patents. Up until this latest development, the bulk of the press coverage about Creative focused on how miserably the company was doing. In its just completed fiscal year, Creative saw its profits tumble to less than $1 million after a $134 million profit in fiscal 2004. And that was after Creative CEO Sim Wong Hoo declared “war” on the iPod back in November. Apple currently claims a 70 percent share of the music player market compared to about 10 percent for Creative, leading one to conclude that if the colonists had waged the Revolutionary War with the same skill that Sim Wong Hoo has displayed in his marketing war against the iPod, I’d be pausing right now to toast the health of my sovereign queen. At any rate, there’s no better strategy for drawing attention away from your own struggles than by suggesting that Apple might have run into a spot of legal difficulty and sitting back as the Apple-is-doomed contingent of the press corps responds the way Pavlov’s pooch reacts to ringing bells.

Creative also made some curious choices in wording when discussing the ramifications of its patent. Pressed on whether his company plans to sue Apple, McHugh would only say that Creative will “continue to explore all the alternatives available to us”—which seems like a funny way to phrase things if your patent is as solid as the company seems to think it is. Maybe “After making off with as much loot as they can carry, our attack lawyers plan to riffle through Steve Jobs’s sofa cushions for loose change” would come off as a bit cocky, but it’s certainly a stronger, more confident wording than “we’re keeping our options open.” What do those options include, exactly? A hearty handshake for a job well done? A stern warning to go and sin no more? A request for Apple to float it a couple of bucks until the next payday? Help me out, Creative.

Of course, it remains to be seen what emerge from this latest iPod patent scuffle. It could turn out that Creative has a legitimate beef, that there’s some substance to its claim. Right now, however, it looks like little more than a shameless publicity grab from a company better at making headlines than it is at making MP3 players.

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