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Deus ex Machina

Apple Inc. v. Samsung Electronics Co., Ltd. makes for powerful courtroom drama. Calling it drama, however, is faint praise. It’s entertaining and thrilling but the effects are shallow and they don’t last.

I have been asked to comment on the trial that just concluded and I find it difficult. The problem for me is that I’ve seen too many of these dramas. From the United States v. Microsoft to NPD v. RIM and Nokia v. X, Y or Z to make sweeping conclusions. This frustrates the journalist.

The problem is that the process of litigation leads to little satisfaction for any of the parties. There is always the anticipation of catharsis, but it never comes. The expectation is understandable. We are led to believe that the law is decisive, the ultimate adjudicator. The reason it isn’t is that the system was established in a different era. A time when technological change was slow, or non-existent. As a result the institutions of law move so slowly that they are nearly futile in administering justice or righting wrongs.

Here are just a few problems I can cite without any research:

  1. Legal processes are glacial. They tend to last longer than the lives of the products being litigated. In the case of phones with shelf lives of six months to a year, the trials are unlikely to get underway before the accused infringer is already off the market.
  2. The law is ambiguous. IP law varies and is subject to interpretation. What one jury (or judge) finds unanimously infringing another will find non-infringing. This gets even more dramatic when comparing decisions across countries and legal systems and through appeals processes and the influence of political considerations.
  3. It’s a big world. Even though patents can be internationalized, the way they are enforced varies.
  4. The financial penalties or awards are arbitrary. As exposed during the Apple v. Samsung (US) trial, the impact of infringement can be calculated numerous ways, all hypothetical.
  5. It is incredibly complex. The technicalities are so onerous that they baffle judges and lawyers and legal experts, not to mention company management and lay jurors.
  6. It is costly. Only major companies or those backed by legal hit squads can participate in litigation. This means it sustains incumbents rather than facilitate entry. By necessity, entrants need to “route around IP.”

But the most damning thing about the litigation process is that it’s assumed to be decisive. Decisive in terms of altering the success (or failure) of companies. That rarely happens. Instead it adds friction to an existing, inevitable outcome. Sometimes it cripples the winner and rewards the loser.

Therefore strategists need to be careful to avoid placing their faith in this system. It’s a lottery at best, a time and money sink at worst. Considering the analogy to litigation as drama, I would re-phrase this caution as a warning not to treat litigation as Deus ex Machina. It’s not something that will get your business out of a jam or reward you for a violation, perceived or real.

Practically, these exercises in drama are used to signal. Signal to competitors, partners, customers and employees. In other words, they are used to create psychological effects. But we know that psychology can be effectively shaped with other messages. Signals that products themselves give (positioning), or that are shaped by communications via advertising. And these means for signaling are much more effective than using the legal system. So why not use traditional means of signaling?

This is the crutch of Deus ex Machina. That this artifice will help tell a story. That “a seemingly unsolvable problem is suddenly and abruptly solved with the contrived and unexpected intervention of some new event, character, ability, or object.”

It won’t.

  • http://twitter.com/pberry Patrick Berry

    There was a nice episode of Running from the Law that talks about avoiding litigation. http://muleradio.net/rftl/26/

    “Most TV lawyers appear in heated courtroom confrontations. In real life, however, the best lawyer is the one who keeps you from ever going to court. Gabe risks alienating some colleagues by differentiating the many kinds of bad lawsuits from the few types that are truly worthwhile.”

  • def4

    Apple is signalling to current and future competitors that they have the will and resources to make ripping Apple off an expensive headache.
    They are also signalling to customers that their proof that their product is the original and has been illegaly copied has convinced a jury of their peers.

    What traditional means of signalling can Apple use to deliver those messages more effectively?

    • Pete Austin

      Apple repeatedly said that Samsung had copied the entire iPhone in 3 months, a speed of execution rarely seen outside of Science Fiction. My main take-away, as a customer, is that either Samsung are incredibly good, or Apple’s management were lying under oath.

      Probably it’s a bit of both. None of the products in question were original – there is huge amounts of prior art that both companies learned from – and Apple and Samsung were riding the same wave of technology made possibly as large touch screens got better and cheaper.

  • matthewwanderer

    Are there any reports or estimates related to Apple’s legal costs associated with this Samsung battle?

    • ChKen

      Does the loser pay?

      • http://www.facebook.com/steve.setzer.16 Steve Setzer

        No. (Usually — in some special cases it can happen, but the US is generally “pay your own way”. )

      • JohnDoey

        Yes. Samsung pays.

  • gprovida

    Unfortunately, I think you are right. However, I believe Apple is doing this for two important reasons [in their eyes]: 1. Its the right thing to do for their employees who have vested so much of their time and energy into these products and 2. It does send a message, not so much for current products, but rather future products that Apple wants to protect its distinctive trademark design the users see.

    The former motive may well be the most important but is related to the second. I think Apple is willing to license or even tolerate use of IP not related to design. So the internal messaging and external messaging are important to Apple.

    Can other messaging be done, I think yes, but that is concurrent. Regarding the deeper non-Apple issue of IP lawsuits there are two points as well. First is that it is usually a licensing deal issue and the current systems legal and patent office handle that pretty well. This is a bit of an exception due to issues of using SEP to drive access to non-SEP IP is disturbing and will need to be resolved and Google et al refusal to accept any IP licensing from H.264, MS, Oracle, etc makes Android a rogue OS and product line. These will need to be resolved in court. Secondly, and also strategically, it is becoming very hard to manage software IP and patents – the level of originality on all patents must be raised dramatically to facilitate commerce and innovation, that appears to be very unlikely to happen and consideration to narrow scope of software patents dramatically.

    • JohnDoey

      Google is one of the largest users of H.264 in the world. Their competing format was just candy for babies named Mozilla and Opera to chew on while Google Chrome (which has a built-in software H.264 player as well as access to the user’s hardware H.264 player) took all their users.

      H.264 was controversial in 2002, when Apple filibustered the Web contet tax and got it suspended. Since then, it was put into every GPU on the planet, both PC and mobile, as well as sold in iTunes Store (every single video) and shipped on every single Blu-Ray. It is a very successful standard and is totally settled. It was even more successful than anticipated.

      Mozilla and Opera are apps you run on desktop Windows, which is end-of-life’s.

      • Walt French

        Don’t forget Adobe in your list of people that Google allied with in order to show distance from h.264. Too bad that what with Adobe’s crazy plans of 2009–2011, they wouldn’t actually be able to put in 3D and WebM into mobile browsers. I’m sure that Google saw thru that but was happy for a 12-month window of Free’n’Open PR Goodness.

        Mozilla exists at Google’s pleasure—both in contributions and ad revenue. They are useful to have around, for the same reason I just mentioned. Sitting here, I remember the scene in Die Walküre where Wotan is forced to allow Hunding to kill Siegmund, but then dispatches Hunding with a contemptuous sneer and the tap of his spear. I see Mozilla getting a gold watch first.

        BTW, h.265 is in the pipeline. Supposedly half the data for same quality vids. Stay tuned!

      • kaelef

        You greatly underestimate Mozilla’s reach. Plenty of people use Firefox on both Windows and Mac, and it’s the de facto standard on Linux.

        I agree that the degree to which Google has distracted everyone with WebM and Flash (which they built-into Chrome just as it looked like it was about to become altogether irrelevant) is embarrassing, however. To Mozilla’s credit, they didn’t capitulate to the pressure on this.

        Not only is Firefox responsible for breaking Microsoft’s stranglehold on the web, but it’s the only browser available (with any traction) that is not obviously beholden to the whims of a corporation’s interests.

        Do any of us really want the web to be controlled by Microsoft, Google or Apple?

        Re: H.264 – yes, it’s silly to use anything other than this. The only reason it’s not supported directly in Firefox is that it’s encumbered by copyright ownership. Can’t blame Mozilla for steering clear of that – it’s Firefox’s whole raison d’être.

    • Walt French

      Here’s a fearless prediction: in the next twelve months, it will be seen that SEPs CANNOT be used to force cross-licensing of non-SEP patents.

      I doubt it will jump out in a black-and-white, global announcement. But Moto has already pulled back in its German suit against Apple, having announced that they have an agreement in principle for Apple to use its SEPs. Rates: TBA, probably with court oversight.

      Might just be Samsung, though, that tries to pull the stunt with its extensive LTE portfolio; they have threatened as much this week. In that case, (I humbly submit) they will be slapped silly by regulators. ETSI would be threatened with a loss of anti-trust protection if its members’ pledges not to be anti-competitive break down; I’m sure Samsung is quite aware but is undergoing a face-saving operation right now.

  • RobDK

    Apple is clearly using this case to send a Big Signal. And that signal has been extremely effective: global media coverage in just about every digital, print, visual and audio media that Samsung is guilty of copying Apple.

    It doesn’t matter what happens with the case; maybe the judge triples the damages, maybe it gets watered down in appeal n 2 years time. It does not matter. The Message has been sent, and the world’s consumers now know:

    Samsung is guilty of copying Apple

    • http://www.facebook.com/steve.setzer.16 Steve Setzer

      And yet, will it make much difference? The world’s consumers will buy whatever is available that “does the job” they’re looking to have done. Most people don’t consider IP copying to be worse than, say, fraud. And millions continue to do business with companies that have perpetrated huge frauds (think of Citibank and the mortgage securities or Barclays and the Libor manipulation). The only differences arising from the Apple verdict will be that Samsung will have to make some changes to their icons and devices, and pay some money that they’ll earn back later (probably by selling more chips to Apple).

      • unhinged

        “The Message” is that Apple follows through on everything it does. I would think that such a meme is far more widely picked up on and respected than “the other guy is a copier” or “so and so is a fraud.”

        It comes down to values. I believe that more people share the value of “it’s right to stand up for you and yours” than the value of “that entity once did something wrong so never buy from them again.” I also believe that there are some circumstances where you must choose the best of a bad bunch – you don’t always get to deal with entities whose values largely agree with your own.

      • JohnDoey

        I think you are talking about sociology.

        If you watch politicians speak with the sound off, you get their real message from everything else.

        Apple told their story. Samsung ran around with their hair on fire. Everybody was sort of waiting for an explanation from Samsung fr how their 2010 phone came to look so much like Apple’s 2007 phone, and the explanation was that PDF of step-by-step iPhone copying. You don’t have to look any deeper to understand the case. No need to be a lawyer. No need to even consider parents or other technical lawyer terms.

        Children can look at this case and see who was wrong.

      • cellojoe

        I will show that were true, but reading the media coverage leads me to believe that most people think Apple is trying to patent the rectangle. the signal thatis sent is never as important as the signal that is received. And the Byzantine and unfriendly nature of litigation often Interferes with even the purest signal. Apple was trying to defend the value of creativity, and rightly or wrongly people do not believe that creativity comes from the court room.

      • JohnDoey

        No, the world’s consumers do not deserve your disrespect.

        Consumers should not be sold a fake iPhone that has 1% of the functionality because there is a nerd theory that they only need good enough.

        Apple is going to take 75% of phones just like they did with iPods, which was actually even more unlikely, because they have the only name brand product and with only one high-end model, they already took 10%. The existing iPhone is a MacBook Pro, and the iPod touch is a MacBook Air — there is an iPhone that is equivalent to iPad that is missing. iPad was the low-end Mac many people thought Apple would never make, and it does indeed outsell the Mac just like everybody always thought it would.

        Apple has not even been going for market share yet. That is iPhone nano. (Or whatever it edd up being called.)

        Everybody needs a real computer in their pocket. The less computery they are, the more they need an iPhone. Paper has gone away. Even the most Luddite consumer needs bus schedules and maps and those things and many similar things are digital now.

        There is too much naming of categories of phones, and not enough recognition that iPhone is still the only consumer computer for the pocket. Samsung does not even have native C/C++ apps. The Samsung phone is like a 2005 phone with iPhone camo. The true #2 player to Apple has to have a way for me to port my C/C++ apps from iPhone to their platform. The apps that consumers want are C/C++ apps, including almost all of the console games.

  • Tardis

    All of the commentary about Apple versus Samsung is driven by engineers with some (small) legal understanding on one side and lawyers with some (small) technical understanding on the other. Horace Dedieu and Florian Mueller being the most notable examples of each.

    In reality, these significant intellectual property disputes are more like sporting events. Both sides know when they have a winning shot, and can negotiate deals accordingly. When they don’t, however, they are still required by shareholders to defend their position, and then they must call in the referees.

    I do not believe that either Apple or Samsung really care how much or how little money they get out of this. The most important thing is that they settle it, on terms that their shareholders cannot criticize.

    Then they can go back to doing what they really care about.

    • Walt French

      “In reality, these significant intellectual property disputes are more like sporting events.”

      Let’s instead say that these high-visibility events are part of the complete picture of how businesses compete. You can find patent lawsuits as a Big Deal in any generation,, whether it’s Hollywood’s guerrilla actions against Edison, the Wright Brothers’ intransigence about allowing others to make airplanes that would’ve aided the US WWI effort, etc.

      I take them as extremely likely any time there is a significant shift in an industry’s economics or technology— too much money at stake, and too few established ground rules exist to just sit back and let one player claim all the business. They will settle down once industry players have reached not the Peaceable Kingdom, but when the expense and uncertainty of litigation outweighs the incremental gains of suits.

      Which raises the interesting question of what Apple’s leadership thinks is the equilibrium that will be reached in X years. I envision it with more models of Macs, more flavors of phones and more sizes of tablets. I suppose Apple plans to capture up to half of the premium-product business in each. Plus, there’ll be an ever-continuing stream of products targeting new needs. (TV, I guess. meh.)

      • JohnDoey

        Probably fewer Macs. Possibly only MacBooks.

        This has all happened before. Apple has to sue to get counterfeit iMacs off the market in 2000 and to get counterfeit iPods off the market in 2003. Then counterfeit iPhones in 2010. When they ship a TV, they will sue 2–3 years later to get a counterfeit off the market.

        Apple creates a small number of so-called “hero” products and then makes them very famous with a lot of PR and marketing. There will always be an incentive for counterfeiters to try and sell to people who are out in droves looking for the hero Apple product. The legal system exists to stop that kind of fraud.

        For Samsung’s part, they were also previously sued regarding their counterfeit BlackBerry (“BlackJack”) and by many, many others also.

    • JohnDoey

      What Samsing really cares about is copying whatever the best-selling phone is. Since that is Apple for 5 years straight, this confrontation was always coming.

      And I think on Apple’s side their is a long history of not only ignoring what shareholders think, but actually reveling in not caring what shareholders think, because it is Apple’s job to please customers, not shareholders. Ultimately, shareholders are only pleased by money, which comes only from happy customers.

      So I think Apple sued Samsung because it was the right thing to do and because it please customers motto be sold counterfeit iPhones.

      • allan levy

        I believe Apple is being disruptive. When Jobs introduced the iphone he said, Boy, have we patented it.” Like other Apple ventures such as retail I believe patent protection is a long term project. Preparation for this case began years before the iphone was introduced, in investigating what patents might survive in court. There will not be a dramatic decisiveconclusion; only the constant pressure on any company copying Apple that they stand to be confronted on a continuous basis by an adversary with deep knowledge of the law, deep pockets, and a culture of persistence, thoroughness and determination.

        1. Legal processes are glacial. So was the building of Apple retail and IOS.
        2. The law is ambiguous. As Apple has created the patents with the law in mind, is gaining experience on multiple fronts, are in a position to play offense in litigaing, they have the resources to better understand ambiguous laws and to present it on their terms.
        3. It’s a big world. Apple is gaining experience in worldwide litigation. If the field is large and complex, deeper pockets have the advantage. When Apple sues a company in a country, they probably have more experience on that turf than their adversary.
        4. Financial penalties and awards are arbitrary. Its like poker. If you play the odds over a long term you will eventually win, even if there are many short term long shot blows along the way. And like in poker, when there is arbitrary risk deep pockets have the advantage.
        5. It is incredibly complex. Again, deep pockets have an advantage, experience in litigating is an advantage, and creating the playing field in fitting the innovation and patent to existing law is an advantage.
        6. It is costly. $100+billion cash.

        We have been waiting for Apple’s next big thing. This is it. Like other innovations their legal strategy is not new, but the thoroughness quality and persistence will be seen as the next leg added to Apple’s moat.

  • N

    You write: “It’s not something that will get your business out of a jam or reward you for a violation, perceived or real.”

    This might be true for a company but I once represented a company against an individual inventor in a patent infringement case. In the end, the inventor got a settlement that made him a wealthy man. His business was gone but he was compensated.

  • normm

    Although the patent system seems much more harmful than helpful at this point, one positive aspect is that it discourages very direct copying, and so allows companies to enjoy at least a brief period of advantage from their innovations.

    • JohnDoey

      How are patents more harmful than helpful?

      Where there are patents there is Silicon Valley. Where there are copyrights there is Hollywood. Where there are no patents ad copyrights, there are people asking how can we make our own Silicon Valley and Hollywood?

      Samsung was taking advantage of consumers by selling them a product that looked like the the-3-year old iPhone, but which was not and which had only 1% of the functionality. Ripping people off like that is bad for the whole market. Instead of a happy iPhone user buying dozens of apps and a handful of hardware accessories and surfing the Web all the time looking at ads, you get a Samsung user with a feature phone that looks like an iPhone, and they make calls and texts and have a free version of Angry Birds.

      Lots of business people operate as if the world is infinite and markets form themselves. Apple created this market, and Sansung abused it, and that had to be corrected so that the market can stay healthy. You can’t have a car market with 2 Corvettes and one is made of cardboard but they both cost basically the same. Next thing you know, the car market has 150 Corvettes, 149 made of cardboard, and the company that makes the real Corvette is being encouraged to make theirs out of cardboard to cut prices because consumers have stopped buying cars unless forced by circumstance. Like the Windows PC market.

      So I have very, very little time for Nerd Dogma about patents or anything else. If Nerds had their way, we would still be running command lines and there would be mandatory FORTRAN for every elementary school kid. Wr already tried it The Nerd Way for many years and it resulted in computers from the iPod company being exponentially better than computers made for business, when it should be the other way around.

      A “market” presupposes that consumers choose products. How can they choose if they can’t tell the products apart? If they can’t choose, that is not a healthy market. Only Apple has generated demand for their product. Other phone makers need to make their own Hero product and generate their own demand for it (competition) rather than disguising their phones to look like Apple’s in order to parasite on their demand. That is not competition.

      • normm

        I’m not against protecting IP, I just think the current utility patent system doesn’t work very well. Patents take too long to get, the incentives are strongly in the direction of patenting stuff broadly without looking for prior art, and a twenty year monopoly in a fast moving tech world is dysfunctional. Litigation takes a long time and is often a coin flip, since the issues can be very technical. Companies amass huge patent portfolios in order to neutralize each others patents, making the whole trillion dollar system largely a tax paid to lawyers. And even the neutralization strategy doesn’t work with trolls, who don’t actually make anything. As startups fail, more and more patents end up in the hands of trolls.

        A problem I encounter all the time in the software arena is the very low threshold for non-obviousness in patents. Writing complex programs often involves reinventing ideas that others have thought of. This is not copying, and I derive no benefit from others disclosure of these ideas (which I haven’t seen), but nevertheless they own them.

        At some point, as problems grow, bad IP protection stops being better than no IP protection at all.

      • Tatil_S

        You are comparing the ideal patent system with not having one. Unfortunately, that is not the world we live in. For every worthy, truly innovative patent, there are hundreds more awarded for trivial ideas or already existing technical solutions with just different wording or combining two existing ideas into one package, which could be done by most experts in that field. A patent troll with just a few these can tie you up in court, costing you millions of dollars even if you win in the end. This was not a problem among big companies, as they all had some good and many ugly patents. They refrained from suing each other, as it was not in anybody’s interest. That is why lawsuits such Apple vs Samsung are so rare. Patent trolls ruin this equilibrium. As they don’t produce anything, having patents do not help manufacturers, as you cannot countersue the trolls. Then, the only defense left is costly legal teams. Yes, patents help companies get rewarded for innovation, but they also get taxed by the patent trolls. Overall, it is probably a wash. For a small company who gets to be moderately successful, it may be worse, as being sued by a patent troll may be a death sentence.

      • http://twitter.com/PenguinTweet PenguinTweet

        Your trivialization of Android’s functionality blinds you to why they have 60% of the market. My LG Nitro HD with 1.5GHz dual core & 720p screen has everything the iPhone has minus iTunes. That’s important, but not 99% important. Plus thanks to Android’s diversity I can pick my screen size & other phone parameters from a wide array of choices. Android is not only not done, it has plenty of room to grow. If it avoids IP violations, of course.

      • kaelef

        You honestly believe the reason Android has 60% of the market is due to features like “1.5GHz dual core” and “720p” screen? Do you have any idea just how little that means to the vast majority of consumers? Google would get more traction out of listing “20 Gigatwiddle Flux Capicitor” in the features list.

      • Pete Austin

        Re: “How can they choose if they can’t tell the products apart?”

        Easy – Samsung products say “SAMSUNG” on the front.

  • http://twitter.com/WalterMilliken Walter Milliken

    An interesting counterpoint to this is that venture capitalists generally insist on patentable IP in a startup as a barrier to competitors. And I know from experience that startups do pay attention to each others likely IP “moats”, and work to avoid them. So there’s always some fear of litigation involved, though the usual outcome is some kind of settlement.

    I think these patent cases are like wars — sometimes you need to wage one, even though it may be less than cost-effective, in order to remind others that you *can* and *will* do it, at least sometimes. So yes, it’s a signal, but I don’t think it’s true that alternative signals can always be substituted.

    And I think Apple’s view of this case is more long-term strategic than short-term tactical. As others have said, it’s about warning others off their turf generally, not about the specific infringements. The dog barks “Respect me! Respect me! Or I will bite you! See!”

    • http://beautyandthesoftware.blogspot.com/ Adrian Constantin

      Who else except Smasung is supposed to hear the bark? HTC is becoming irrelevant without much push from Apple and the other big and profitable Android manufacturers are ZTE and Huawei. Can you imagine Apple litigating successfully against ZTE and Huawei in China, India and Africa?

      • http://twitter.com/WalterMilliken Walter Milliken

        Certainly I wouldn’t expect much from attempting to enforce IP rights in China, but I think ZTE and Huawei have ambitions that reach the US as well. So there might be *some* effect, but not necessarily against devices targeted to the home Chinese market.

      • Joe_Winfield_IL

        I would argue that, as of yet, ZTE and Huawei are not competitors to Apple in the sense that the traditional phone OEMs are. Samsung has marketed (aggressively) their products as alternative to Apple’s – going so far in the “Samsung’ed” campaign as to take a Mac vs. PC style direct shot. This type of marketing is a strong form of signaling, and Apple chose to respond with litigation rather than legitimize Samsung’s claims through marketing of their own.

        Apple can’t yet pursue the $100-200 range in which ZTE and Huawei live, so there is not conflict today. However, Apple have theoretically set a precedent should the Chinese manufacturers decide to follow in Samsung’s footsteps.

      • JohnDoey

        Those makers may copy iPhone nano, or may have been warned away from doing so by this trial.

      • Joe_Winfield_IL

        We can only hope they (and everyone else for that matter) have been sufficiently scared away from future copying.

      • Walt French

        I have to assume that Apple’s approach of suing the OHA manufacturers rather than going after Google directly was a good move. No Oracle abstractions, but a clean, “you took our sales.”

        Eventually, that means that Google has to re-do the software, whether to avoid OHA defections or simply because they can’t sell their products.

        Sales in India, China etc are fine for the manufacturers, but they do bupkiss for Google. They have no incentive to tailor the product for markets where it might actually speed up competitors’ (e.g., Baidu’s) businesses faster.

        So maybe Apple will indeed go directly against Mountain View. I personally think that will make the eventual rapprochement more difficult, and it won’t really do Apple any good over their current tack.

      • JohnDoey

        Android is already over. Google bought Motorola. Samsung is the only one who seemed to be making any money from Android, but they are going to pay it all to the people they copied.

        Apple is going to release the smaller/cheaper iPhone and iPad over the next year and Microsoft is coming into tablets in a big way.

        Android was an antique vision — grafting a PC industry onto the phone market. That didn’t happen. Instead, Apple grafted an iPod market into the phone market. It is all iPods now. Windows is about to get the interface from the Zune. Google admitted they underestimated the value of a content ecosystem for mobiles, just like every phone maker sneered at iPod+iTunes.

        As the phone market changed to a next-generation iPod market, notice how Samsung was pitched as the underdog in this trial. Samsung is in phones for 20 years but is the underdog against Apple who have been in phones for only 5 years? It is because people see it as Samsung has been in iPods for 3 years and Apple for 11 years. It’s iPods that win the pockets of 21st century consumers, not smartphones.The apps and computer and media are as important or more important than the phone. Especially when you move to FaceTime.

      • http://beautyandthesoftware.blogspot.com/ Adrian Constantin

        With the unfair benefit of hindsight, I also think that Apple’s move against Samsung was a good one :-) I am only reluctant to extrapolate too much from the Apple vs. Samsung case. What Apple has won vs Samsung does not help them much against the likes of ZTE and Huawai.

        I do not think that ZTE or Huawai need direct support from Google. They are ready to take whatever Google puts on the Android table and run with that. Google has surely heard the message from Apple, but Google’s strategy in the mobile space seems to be based more on impulse than actual strategic thinking. A jump from bidding pi billions for Nortel patents to paying 12B for Motorola is not exactly the proof of a consistent action. They have misunderstood the value chain in mobile computing and now are so desperate to change roles that Apple’s messages don’t look to be their biggest concern at the moment.

      • http://www.facebook.com/bob.arker.731 Bob Arker

        Adrian, I believe you are missing the point completely. Go up the page and read def4’s comment please.

    • Tatil_S

      I agree, some messages have to be sent through litigation. Now the message is sent and even with a very successful outcome, Apple won about $40 per device minus the litigation costs, but the decision came after years of sales and market share gains by its competitor. Considering Samsung is rumored to be paying about $10 to MS for royalties, this is a large number. Litigation definitely adds additional costs on top of this, but Samsung will probably never have to pay any royalties or spend much on litigation in many countries. It sounds like it would make more sense for Apple to settle for a royalty rate similar to MS with some agreement about “no cloning”. As Samsung managed to settle with MS, it seems it would be happy to enter a similar deal with Apple, as long as all its competitors are hobbled with the same burden.

      The modest side income may not be the ideal outcome Apple is seeking, but if $42 is the best Apple can hope for after lawsuits, royalties would be the most rational course of action and it would accomplish just about the same results from here on out. Instead, I am afraid Apple will go towards forcing Android phones to remove some features such as slide to unlock, pinch to zoom or bounce back, which will not make much of a difference in the sales of either camp, except it will create distractions for all.

      • http://twitter.com/LeePenick Lee Penick

        samsungs repupation was destroyed…and for good reason. A settlement wouldn’t do that. Now you have to wonder, if “they bought a Samsung, did they boy fenced diamonds too”

      • Tatil_S

        The ruling provides vindication for those who already disliked what Samsung did. It did not uncover a seedy scandal previously hidden, public could easily see what was going on. There are people who buy Samsung phones because they genuinely prefer Android interface or large screens (for high end phones) or they cannot afford a more expensive one (for low end ones) or because iPhone is not available on their carrier or country. I’d wager people in these customer segments will keep buying Samsung phones as enthusiastically a year from now rather than switch to Lumia or HTC or iPhone, unless the competitors offer “better” phones for them.

      • http://twitter.com/LeePenick Lee Penick

        That doesn’t negate what I wrote.
        Some people will buy from a thief, fence, pawn shop.

    • JohnDoey

      But Samsung did not design an original phone that just happened to infringe on somebofy’s patents. Samsung traced around iPhone and signed their name to it. You are thinking of a company reading patents to find out what to avoid. This was the opposite. Samsung used the Apple patents as a starting place for their own phone, and then copied feature after feature until people who saw their phone thought it was a real iPhone.

      There is an actual science to copying. It is really, really hard to copy something like an iPhone so well that people who own iPhones (like me) are walking along the street one day in 2010 and seek a poster advertising an iPhone, but it turns out not to be an iPhone. Samsung had to get the curves just so, the metrics all just so. It does not happen easily, let alone by accident.

  • iphoned

    Polaroid vs Kodak was decisive. Forced Kodak to shut down instant photography business and pay damages. Unless Google/Moto can come up with a strong, relevant, non-Frand patent, this too can be decisive.

    • Tatil_S

      Kodak could decide that it was not worth the trouble, as instant photos was only one niche business and a fairly small one. Samsung or Google cannot leave the smartphone business and concentrate on other types of phones.

      • http://twitter.com/WalterMilliken Walter Milliken

        But the ruling keeps neither of them out of the smartphone business, which I think makes it unlike the Kodak/Polaroid decision which related to the whole way of making and using instant film.

        Also, smartphones aren’t the single core business of either Samsung or Google, though with Samsung, very recently, it’s become a key profit driver. It’s not even that for Google. So both of them *could* decide it’s “not worth their trouble”. But they probably won’t.

        It’s not like Apple’s patents read even on *functions* (e.g. email or texting) used in smartphones — those patents are older, and belong to people like RIM and Nokia.

        It’s perfectly feasible to make quite functional smartphones that don’t infringe on Apple’s IP. They may not be quite as easy to use, or quite as pretty. But other people are hardly locked out of the market.

      • Tatil_S

        All good points… If RIM or Nokia ever goes out of business, the incumbents have to make sure patents will never get into the hands of patent trolls. It will be interesting to see if DOJ would interfere on anti-competitive grounds if they wanted to bid all together. Bidding for Kodak patents could be a good test case.

        If there was some sort of truce between the warring parties, you could almost see one side bidding for RIM and the other for Nokia without any need for explicit (and possibly illegal) agreement between them to avoid inflating the price, but that level of inherent trust does not exist at this point.

      • Walt French

        Apple is dealing just fine with RIM and Nokia’s patents. Many are FRAND-pledged (therefore not a huge risk) and many others are for specific functions that are not necessary in modern devices.

        I’m not one to worry about trolls. If a company buys a legit patent that Apple or anybody else infringes, why shouldn’t Apple pay a reasonable fee for using the patent, no matter who originally did the work (and sold the product to the troll)?

      • Tatil_S

        Apple has license agreements with Nokia, but I don’t know whether that covers everything or just FRAND ones. I also don’t know whether other Android makers have written contracts or just an understanding not to sue for fear of counter lawsuits.

        “Legit patents”? Doesn’t that imply there are “illegitimate” patents? I worry about trolls, because (1) there are way too many “obvious” patents that should not have been granted, but it still takes a lot of time and money to invalidate later on during litigation. (Didn’t RIM get into trouble for just such a patent and ended up paying hundreds of millions, even though the patent got invalidated some time later?) (2) Juries assign very high values to patents. There can be very few patents that should cost a few percent of the retail price of a gadget, as there are thousands of patented ideas in any gadget (and a good chunk of the retail price has to go towards in-house R&D, production, transportation and marketing) but awards routinely reach those levels. It is easy to make idealistic statements that include phrases such as “encouraging innovation” and “rewarding inventors”, but it is foolish to consider only the benefits without considering the costs of a system as it exists in real life today.

      • Walt French

        Remember the old joke about umpires in a bar? First says there are balls & strikes and he calls ‘em as he sees ‘em. The second, ditto, but he calls them as they ARE. And the third: there are balls and strikes but they ain’t nuttin UNTIL I call ‘em.

        To somebody who’s being sued, every patent is illegitimate: not novel, obvious, registered too late with the standards body, …. But it ain’t illegitimate until the court finds that the party being sued doesn’t have to pay for it.

        This obvious truth is somehow lost in today’s discussions: many “illegitimate” patents are perfectly good. If people fear having to pay for somebody else’s legitimate IP, tough.

        Of course, courts are far from perfect and it will be helpful to have a stronger US PTO. But Congress has CUT funding for it at the same time the needs are higher. I don’t see why you blame our patent system for a political preference for wild west, work it out at gunpoint, type os folutions.

      • Tatil_S

        First of all, I find your accusation that I find patents illegitimate only when it is held by the other side very offensive. We come across patents (and we file for patents) over the regular course of our business. Over lunch, we all make fun of how incredible that this or that patent was granted, sometimes ours, sometimes somebody else’s. It cuts both ways and we do play the game we are handed. That does not mean it is good for the economy.

        The parties being sued has to pay a lot just to get the patent invalidated in the US. Add the cost of uncertainty, the economy and tech sector as a whole suffers from the inefficiency. You cannot wish the costs away. If only the courts were better, if only Congress did not cut funding, if only blah blah blah. At some point we have to make drastic changes, as we need to improve the system as it exists for decades now, not dream of the day where the idealized version will materialize one day. For example, the limitations on injunctions for alleged violations, where the patent holder is not going to suffer damages that cannot be financially compensated, (read most trolls) was a great reform and it did not require spending more money, just some smarts.
        Besides, even when a patent is worthy, they are written in such a way that an engineer cannot read it and understand what is really going on. When patent system was instituted, the idea was to encourage people to describe their inventions, so that the society could learn from it in exchange for the 14 year monopoly. Otherwise, people kept their inventions wrapped up as trade secrets for as long as possible. Patents are now buried under legalese and written with as generic terms as possible to make it more difficult to work around by using word games (you said “four terminal device”, well mine has five; but one of your terminals does not do anything, it is just there to avoid my patent; five is still five, go pound sand…) and to make it more difficult for your competitors to figure out what you are doing. (A good example is the latest Apple patent in the trial. I think it talks about two finger inputs in it, but people cannot agree whether pinch to zoom is covered under it, as it has its own patent, or just two finger taps.)

      • Walt French

        Sorry, you’re taking umbrage where none was given. The umpire joke applies equally well to the patents that were asserted against Apple: Apple’s argument included the invalidity of each.

        I was just noting that “legitimacy” of a patent — an issue that you reasonably raised — was in the eye of the beholder, and it is irrelevant until actually proofed by a court.

        No accusation resembling what you found. I did NOT edit my post above; please go ahead and re-read it. I trust we can continue to read Horace’s blogs for information, new perspectives and occasional corrections of misperceptions, not personal attacks.

        On to your other concerns, OK? I note that Google promised over a year ago to help its licensees, and knew 5 years ago that it was writing code for methods that Apple claimed patents on, yet despite a subsequently-organized effort to search out prior art or other reasons for invalidity, the Samsung arguments for illegitimacy fell flat. That is a proof statement for the notion that some patents are more powerful than others. And, that the patents that Apple asserted are actually for innovations that fit US law and traditions for IP.

        Meanwhile, the road rage in many tech blogs is astonishing, and is worth comment in the context. Just last night a journalist re-tweeted a picture of some Fisher-Price toy, “claiming” that it would be the subject of Apple’s next lawsuit. Today’s Dilbert joke about iPhone advocates going overboard was funny and didn’t mis-represent anything except the fictional character, but the WSJ’s retweet echo-chambered what appears to be a coordinated attack on Apple’s suits, an attach that trivializes them into complaints that Apple’s wins are because Apple somehow hijacked the entire patent/trademark mechanism of the US and patented rounded rectangles in a grid. Her joke helps spread the Google PR line that all asserted patents are bogus by using phony examples.
        And blatant misrepresentations of the truth. I personally think the caricatures of injustice do a serious disservice to FOSS advocates who cite them. If you go to the Ars Technica website, for example, you’ll see hundreds of posts angered by Apple’s latest suit against Samsung, claiming for example that the Galaxy S III looks NOTHING like the iProducts, and that Apple has gone off the deep end. Never mind that the article links to a PDF with the suit, and that suit clearly spells out that it is over 8 utility patents that enable key customer features of the software. Ars has what I take to be an intelligent and well-educated audience of software experts; for such blatant misunderstandings to grow is sign of a foul corruption of the data.

        Somebody must have started the thread with a deeply dishonest intent, because it’s more factually dishonest than anything in the US political campaigns. The actual claims are on page 5 of a double-spaced document, hardly beyond the reach of anybody with an IQ above 100. And maybe tens of thousands of others mindlessly repeat the blatant lie, or are themselves complicit in a dishonest re-writing of the facts. A couple of days ago, I counted over 40 million search hits for “apple rectangle patent,” despite the easy fact that Apple asserts no right to the rounded rectangle, but rather a design that incorporates them as one element.

        In this environment, it is exceptionally hard to find a fair understanding of Apple v Samsung by reading even sensible articles. It could be that Apple and others are trying to stomp over the little guy, but responding to infringement of their IP by global megacorps such as Google and Samsung does NOT fit that meme at all, so I don’t know why it’s a relevant part of an intellectual discussion of the role of patents in the mobile industry, which has LONG wired IP patents into its structure. There are thousands of them and there have been suits and strongarm tactics, even blatantly anti-competitive refusal to license them, for decades.

        None of this is to dispute your claims that sometimes patent battles work injustice. It is ALSO true, however, and I think MORE relevant to the principles Apple is invoking, that many examples exist where theft of inventors’ work occurred, because the patent system is too flimsy to actually protect patent holders. I continue to read the Apple v Samsung case, and the threats of invoking suits over Samsung’s LTE patent portfolio, as evidencing both the strength and the limits of assertions of IP.

      • Tatil_S

        Do you know why people are disparaging Apple’s patents? Same reason people disparage global warming. They’d rather live in denial and enjoy whatever product they like without feeling guilty. If they can convince themselves that nothing is wrong with what Samsung did, they don’t have to reconcile the pleasure they get from their lifestyle choices with the guilt the same choices cause.

        In any case, you keep bringing up one case where the system worked properly, (even though it will be probably another 2 to 4 years before the judgement will really be final in this case and many more suits and countersuits to follow) while ignoring the negative side of the ledger. Here is a slightly different take by Judge Posner:
        http://www.theatlantic.com/business/archive/2012/07/why-there-are-too-many-patents-in-america/259725/

  • Walt French

    I’m certainly guilty of wanting more clarity than these cases actually provide. Thank you for the counsel towards expecting less. It’d be nice to see charts showing adoption rates of insights about the industry, with nearly-vertical bars about UI patent protection or other contentious issues, but I guess that will wait for another few dozen years or more.

    That said, the cases can hardly be without meaning and certainly looking at the overall picture, some milestones and indications can be read:

    1. The iPhone went on sale 5 years ago, and Apple has (finally!) landed a successful judgement on some core elements of its UI having been infringed. Almost all Android devices (including Amazon’s) use these features, and two of them make a nice difference in the user experience. Samsung’s defense against these were terribly weak, despite help from Mountain View. As these make their ways through the courts, the probability of more damage to the Android experience has been raised. Apple seems likely to get a permanent injunction against phones that are about 10% of the US market, just weeks before the holiday sales season.

    2. Apple will NEVER again get such favorable discovery. Such plums as Google advising Samsung not to copy so much, and Samsung laying out so assiduously how to copy nonetheless, were hugely determinative by several accounts. But Apple has also learned how to make its case in the process. Their damages testimony regards the utility patents also was accepted largely intact; that would’ve forestalled the fiasco they had in Chicago. So at least, this trial will not force Apple to give up its hard stance on UI IP.

    3. Meanwhile, this week also saw two standards-essential cases against Apple turn into non-issues. Besides the rejection of Samsung’s infringement claims, word came from Germany that Motorola has accepted Apple’s offer for essential IP, although the rate is TBA. This shifts the counter-suits against Apple to non-essential utilities, ones which Apple can remove (as they did in Germany for push email), work around, or otherwise reduce to manageable dollar amounts. The dollars could still be high, but against Apple’s margins they will be manageable and could present a competitive advantage if other players are also forced to pay similar fees against smaller margins.

    So I saw the week as quite meaningful and indicative that there will be increased pressure for a competitor to develop a truly independent smartphone, whether based on Android or otherwise. I’ve previously written that Samsung’s actions look to be reasonably smart in the short run; where I would fault them is if I’m correct in my belief that they have NOT mounted a professional, full-bore development effort to withstand any such future issues. From my understanding, TouchWiz is not that effort, nor is Tizen/Bada. At this point, even if Google has promised such an effort, Samsung likely realizes that it cannot rely on its interests being sufficiently considered by Google.

    In the DOS/Mac era of PC competition, Apple made the mistake of introducing an easy-to-use product to a market mostly concerned with bang-for-the-buck; competitors had time to work out the mouse/window interfaces, funded by DOS sales. This era’s competition has moved much faster, and it seems as if Apple relied overmuch on IP protection to achieve a dominant position before others developed similar features. If the latest case signals the outer limit of how much they can hobble a competitor, then maybe Apple will start recognizing a new landscape and move to compete along other lines (such as diversification, frequency of models, ???) or they will move on to other adventures where they can repeat the iPhone model of defining an industry, competing with a premium experience and plan for the next conquest.

    • JohnDoey

      The DOS/Windows stuff was a different Apple that moved slowly and left price umbrellas.

      If you want clarity, go no further back than iMac (also dismissed by competitors then later copied by eMachines and the sued out of existence) and iPod (also dismissed and copied.)

      The economics of manufacturing are also different now. With outsourced manufacturing and devices being purchased one at a time, what makes a product cheap is not making out of cardboard, but rather taking hundreds of millions of orders. Apple is the best at that. They are the biggest and have the price advantage. Samsung Galaxy was the last, desperate gasp for air of the smartphone, with it imitating iPhone to pretend it is not just a PDA with Java apps and a phone stuck on. Unless somebody builds something to obsolete iPhone, the iPod market and PC market (at least Apple’s part) will just continue to eat it alive.

      • http://twitter.com/WalterMilliken Walter Milliken

        Yet Nokia had the economies of scale on their side long before Apple did, and they lost out. Being able to achieve economies of scale is a necessary, but not sufficient, condition to compete. And a compelling-enough new idea can trump the economies of scale for long enough to reach scale.

  • handleym

    Horace, I think the right way to look at a trial like this (both what Apple was hoping for specifically, and in the general case) is Restrictions On Sovereignty.

    A constant problem with punishing companies (and states, though that’s not relevant here) is how to punish the “company” (which essentially means upper management) without punishing more-or-less innocent bystanders. Penalties like fines, or dismemberment are problematic because they are so blunt.

    One way to do this (which the law has stumbled into, and doesn’t officially admit) is restricting the sovereignty of management; ie restricting their freedom to do what they want. This has the nice quality that it really pains management, while not much hurting anyone else; and thereby has a substantial deterrent effect on the management of other companies.
    If you look at the largest tech lawsuits of our lifetime, eg IBM or ATT or MS vs the US, this loss of sovereignty was the biggest effect. It meant that management became massively hobbled by lawyers, slow to do anything, and desperate to ensure that whatever they did met with the letter of the law. Which allowed alternatives to flourish and other companies to rise. Mission Accomplished!

    We’ve not had as much experience with the same phenomenon as a result of private litigation, but I suspect this is the important part of how Apple vs Samsung will play out. The specific details of what UI and Trade Dress Samsung can no longer use are not important; what matters is that for the foreseeable future everything Samsung does in the phone and tablet space will be run through a panel of lawyers who won’t give a damn about how beautiful or coherent it is, only that it very obviously and deliberately does not violate Apple’s patents (ANY of Apple’s patents), and for that matter doesn’t violate the patents of MS, or Nokia, or Sony, or any other company in this space.
    This has, in fact, already happened. People have pointed out how the sole possible explanation for the visual horrors that are the SGS III and the Note 10.1 is that they’ve been designed to look nothing like an Apple product.

    So I expect this to play out, ultimately, in much the way one would hope the law would play out. Samsung, severely burned, will be punished for the foreseeable future by having to live in lawyer-designer hell, shipping products that look awful. The rest of the Android-sphere (apart from Xiaomi — let’s see if that leads to a lawsuit!) will be rather more careful about blatantly copying Apple, but won’t have the mortal dread of Samsung, and will perhaps actually innovate in UI. The result will, in spite of the whining of both Samsung and Andy Ikhnato, not be less competition but more, as people think of better ways to solve UI problems rather than simply modifying what Apple has already done.

    • JohnDoey

      That is a function of Samsung’s well-deserved loss of reputation. They are like a student who is on probation for plagiarism. Everthing they make from now on is suspect.

    • Dekker

      I agree. Going back to industrial organisation case studies from the past, the impact of antitrust legislation was often that it forced a chance in behaviour that was initially not noticed.
      It is not hard to imagine that without the US/EU vs. Microsoft cases, Microsoft would have had much more opportunity to introduce proprietary web-standards that would have made life pretty much impossible for would-be competitors. Still, at the time the impression was that Microsoft got off easy because they were not broken up.
      In the Samsung case, if they cannot ‘borrow’ Apple’s approach directly – but need to spend an extra 3 months to come up with something similar-but-different (and not get it right in the first iteration) – then that has a major impact on market dynamics (especially when the product cycle is only 12 months to begin with). The irony is that it will be Samsung’s in-house legal team, rather than Apple’s lawyers, that will be inflicting most of the damage by being overly cautious in avoiding inadvertent copy-cat features and insisting on signing off on new features.

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  • http://www.facebook.com/profile.php?id=100000728233984 Kristian Iskanius
    • Walt French

      I wasn’t sure that was Tomi at first… only 1500 words, WTF? But then I saw the link that led to 21 reasons why Elop was the worst CEO ever, that Microsoft had thrown Nokia under the bus, and my suspicions ebbed.

      There was some misperception and discussion about the accuracy in the comment thread there, so, with the caveat that some numbers are not knowable because they’re secret, I’ll just say the overall tone and balance struck me as about right.

      Which was… about a billion computers (smartphones thru desktops) sold last year, with *desktops* (not notebooks) quickly disappearing, down almost to single-digit share.

      …“Mostly-smartphone” companies at the top of the rankings. Apple and Samsung climbing to #1 and #2 in units; iOS and Android both out-selling Windows. (OSX lost in the “other” category.)

      And here’s MY interpretation: the problem with innovation in the PC space is not a fault of equipment makers, it’s that the consumer has moved away from the desk and wants something in his or her pocket or backpack. The incremental enhancements of faster chips, more memory and lower cost will continue, but the paradigm shift is obviously out of that market.

      What is your concern?

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  • JohnDoey

    I think Apple just did what is right, damn the consequences.

  • GuruFlower

    All true innovation eventually becomes commoditized. The patent system, through the modality of licensing, allows this to happen in a (often irrational) way that protects the interests of future innovators. Without the courts, no company would ever pay to commoditize an innovator’s ideas. Patent and copyright play important roles in the advancement of civilization.

    Create something unique or beautiful, be it an industrial process, a movie, a painting or a photograph and it will quickly be copied for another’s profit; the threat of possible litigation is rarely a hinderance to infringement. And ultimately, if at all, the infringer pays for his license with the profits of his infringement (except in the rare case of treble damages). This is the weakness of the system and why it is so frustrating to innovators and their supporters. You steal first and, maybe, pay later. Without the courts it would be steal now, pay never. End of innovation.

    Google has long lived on the creepy edge of intellectual property rights law: photographing people’s homes, collecting wireless information, Google Images (a road map to illustrating your web site with copyrighted art). But Eric Schmidt has said it all so much better than I can: http://allthingsd.com/20110120/talking-schmidt-googles-ceo-in-his-own-words/

    Google has always recognized the huge market for stolen intellectual property. It’s the reason they fight every attempt to tighten IP law. So the methods of Android built on copyright and patent infringement should come as no surprise here. The Oracle v. Google Android-Java lawsuit proves your point that there is no Deus ex Machina in IP law. (That case was a challenging problem for any jury.) But the Apple v. Samsung verdict says that yes, sometimes the system does get it right. The ultimate looser here will be Google because Android is stolen goods. Slowly the courts are affirming this.

    Messy, time consuming, unsatisfying it may be but copyright and patent are the best tools we as a civilization have been able to devise to protect our common interest in future innovation and the end process of commoditization that makes innovation cheap and broadly available. Without them we might still be using wooden plows drawn by horses and there would be no economic motive for artistic creation.

    • Walt French

      “This is the weakness of the system and why it is so frustrating to innovators and their supporters. You steal first and, maybe, pay later. Without the courts it would be steal now, pay never. End of innovation.”

      I share your general sentiment but find this overblown. Every radical disruption has featured battles such as Apple is in, and this is in fact how our notion of property and rights evolve.

      You make a great case about Google’s ability to profit from the new standards, but they ARE standards or Google would have been put out of business.

      Try writing a narrative about the music business, and you’ll see that technology, aided by artful vilification of the greedy bastard RIAA (forget the musicians), brought a dramatic shift in the economics of music and its availability. To my eye and ear, a dramatic loss in quality resulted, and modestly popular (e.g., jazz) artists’ incomes plummeted, but there’s no doubting the new convenience and price.

      I am somewhat fascinated how, on many tech blogs like Ars Technica, TheVerge and others, there seems to be a coordinated effort to repeat the expropriation oops, re-distribution of rights from the original IP authors, to those who feel entitled to use others’ work. Same vilification (this time, Apple) and the same justifications. Same fingerprints of the firm you called out.

      I think this is the biggest risk to Apple’s future success: that they rely too heavily on early-21st century notions of property that might not survive another 50 years.

      • GuruFlower

        I found your response thoughtful and thought provoking. I would say that Google is ATTEMPTING to create a new, lower standard of IP law. It has many supporters in this, particularly writers/bloggers whose main goal is to create an internet presence that brings in advertising revenue from Google.

        Google’s model in this is disruptive in itself and their disregard for IP law will have bad consequences for innovation if it is accepted. There may have been the thought in Mountain View that, “If we can get away with Android, we can get away with anything”.

        But I don’t believe it will be accepted ultimately. There is too much money to be lost by Google’s competitors and Google is under increasing scrutiny the world around for its misdeeds. It seems that no matter where they plant their flag they are brought to account by a government or court. Android is going to be their biggest battle and perhaps their biggest defeat. That, in large part, depends on where Apple brings its next case and if it succeeds. I thank Steve Jobs for having the guts to stand up to Google and call it out for what it is.

        I, for one, do not want to live in a world dominated by the all seeing eye of Google. And I am comforted by the fact that copyright and patent are written into the Constitution, “securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”. These are rights that must be vigorously maintained by us or their interpretation will be weakened to the point of nullity by Google.

      • Walt French

        Another reason: advertising is an incredibly INEFFICIENT way to monetize material.

        Especially on mobile, the revenue to the publisher is microscopic per use, but it exacts a LOT of screen real estate, user time to dismiss, and even download time/data. I’d guess that Google captures the great majority of the actual economic value*, although the carriers get their ounce of flesh, too.

        Media advertising allowed the proliferation of mid-20th-century broadcasting. But since the internet is a two-way medium, smart users would rather pay the publishers directly than lose the time to have clear out the junk that Google lobs at us.

        * Yes, most of the time I strongly dislike it, but I concede it has economic value.

    • kaelef

      As with all other tools, there are both positive and negative aspects to patents and other IP tools. Their intended use and the expected effect on our society is overall positive, but there’s little doubt that their abuse or over-use can have the opposite of intended effects.

      There can be no furthering of technology, artistry or culture without building on, updating, and, yes, copying what has come before. While I agree with the end-result of this recent Apple vs. Samsung case, I don’t believe that copyright and patent laws, as they exist in our country today, are optimal for fostering growth, development and innovation of our culture and society.

      The current pushback you’re seeing against the current state of IP laws in the U.S. is based on the belief that they’ve become far too draconian in leaning towards the rights of the perceived “owner”. Copyrights pushed from 30 years at the beginning of the 19th century to over 100 years today? How can such laws do anything other than stifle innovation or evolution?

      We went from absolutely nothing to wooden plows drawn by horses without the aid of IP laws, so either there are other motives for innovation and artistic creation beside simple economics, or the idea that there is no economic motive without the protection of IP laws is fundamentally flawed.

      But I think most of us agree that there is a benefit to IP laws used judiciously. The question is simply whether the current laws are having an over beneficial or detrimental effect.

  • http://twitter.com/IrvSwerve Irving Wiseman

    Re Point No.5-its so complex that the dumb jury, asked to consider 600 questions by the judge could do so within 21 hours! An average of 2 mins per item.Also with Apple playing at home , with their HQ 100 miles away, against oriental aliens how could they lose? Its like a jury in Manchester asked to rule on a dispute between Manchester United & Real Madrid!
    Finally US patent law is ridiculous compared to UK rulings where attempts to patent the obvious are usually rejected by the courts.
    A rectangular display unit with rounded corners? Doh!

    • Space Gorilla

      It is my understanding that the rectangles with rounded corners wasn’t part of what Apple won. Samsung used that phrase in a press release, but it wasn’t actually true. Correct me if I’m wrong, but I’m pretty sure Apple did not win on the rectangles with rounded corners issue.

      • Walt French

        “Apple patent rectangle” now shows 42MM+ hits on Bing; Google was in the same league a couple of days ago.

        This shows the power of disinformation—what was the quote about Lie gets all around the world in the time Truth gets out of bed? I’ve seen it written by a NYT blogger.

        Of course, it’s as ridiculous as claiming that Coke somehow owns the shape of a wave (or circle), or Buick owning the ellipse, just because they have successfully asserted trade dress that incorporated those elements.

        I’ve been unable to listen to the RNC because of similar distortions. (I fear the DNC will have its share, too.) These cannot possibly be intended as factual statements, but merely evocative rallying cries. They seem to be working, even as they are damnable lies.

    • JaneDoe12

      Re Point No.5-its so complex that the dumb jury, asked to consider 600 questions by the judge could do so within 21 hours!

      The jury had to answer 600 questions on a 20-page verdict form. I couldn’t find the questions, but here’s a copy of the instructions (link here) given to the jury for completing the form. There are 109 pages that told them what they were and were not to decide. It looks incredibly complex to me.

      Bloomberg: Apple-Samsung Jury Must Answer More Than 600 Questions

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  • kankerot

    Awful decision by the jury who were lead by the foreman Velvin Hogan who has no idea what constiutes as prior art. Read his following QnA to realise how absurd his thinking was and how the other jurors deferred to him as being some sort of parent expert.
    http://gizmodo.com/5940257/ask-apple-vs-samsung-jury-foreman-velvin-hogan-whatever-you-want
    Quite simply he believed that unless Apples software could run on the devices shown as prior art they could not be considered as such.
    The rebuttal of this ridiculous thinking is put best in the response after which Hogan leaves the chat room.
    You’re suggesting, then, that the patent is on the particular implementation, not the overall concept? In that case, isn’t it clear that in many of the patents no infringement is possible, as clearly an implementation in Java (Android) is distinct from an implementation in Objective-C (iOS)?
    If, however, you’re suggesting the patent is on the concept, then clearly there IS prior art, and therefore the patents are invalid.
    Either way, Samsung should not have been charged the exorbitant punitive damages you clearly believed were due.

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