Apple's Pyrrhic Patent Victory

The reaction to the jury's decision in the US patent infringement case between Apple and Samsung has been rather remarkable. I've seen it called all kinds of turning and inflection points for the computing/mobile world, as if we are entering...


The reaction to the jury's decision in the US patent infringement case between Apple and Samsung has been rather remarkable. I've seen it called all kinds of turning and inflection points for the computing/mobile world, as if we are entering some strange new era whose landscape is weird and unknown to us. This is utter nonsense. I don't think Apple's "stunning" or "total" victory – all phrases I've seen bandied about – is particularly stunning, or even a victory.

First, Samsung is appealing against the verdict. Alongside possible issues with the way evidence was heard, there's also the curious fact that the jury took relatively little time to come up with their decisions, even though the latter were extremely complex, and required detailed output. You can see just how detailed in the verdict document, which consists of 20 pages of complex tables with literally hundreds of boxes that needed filling out with "yes" and "no".

One explanation for the alacrity with which this was achieved is that the jury foreman was an engineer with a rather interesting background:

Velvin Hogan, foreman of the nine-member panel, told the court during jury selection last month that he spent seven years working with lawyers to obtain his own patent, one covering "video compression software," a hobby of his.

I'm rather surprised Samsung did not object to his presence, since the fact that he spent seven years obtaining his own patent suggests that he might have considerable emotional investment in the idea. That, in its turn, might have led him to support Apple out of solidarity with what he viewed as a fellow patent-holder. If, as the above article suggests, the jury relied on his views – understandable, given his background – it's perhaps no wonder that the result came out so favourable to Apple.

Doubtless, these and other issues will be explored in any appeal, so the current outcome should be regarded as provisional. But for the sake of argument, let's assume it stands. That means Samsung must pay Apple over $1 billion. For us lesser mortals, that's obviously a huge sum, but is it really so much for Samsung? It's a huge company, operating in many fields.

An optimist would say that it has enjoyed some of the best global advertising in recent years, and that $1 billion is a fairly low price to pay for that. After all, there can't be many potential buyers of smartphones who are not now aware that Samsung is a rival of Apple, and in many respect highly similar. Some of them might well take a look at Samsung's offerings, and might be pleasantly surprised at the lower price of many models compared to Apple. So even in crude financial terms, it's not clear that Samsung has really suffered too much.

On the other hand, it's true that most of Apple's claims of infringment by Samsung have been upheld. However, if you look at the patents in questions, helpfully itemised in this Wired article, it becomes clear that these are not earth-shattering features that will bring Samsung to its knees.

For a start, the one covering the "ornamental design" of an iPad was not included in the list, so tablet design is not affected at all. The most important of the others is US Patent 7,469, 381 [.pdf], which Wired summarises as:

touchscreen interactions, including dragging documents, multi-touch, pinch-to-zoom, twist-to-rotate and that nifty little scroll bounce when you've reached the end of a list of items.

If you read the actual patent, you find the claims really are as trivial as they sound – basically the idea of dragging an object on a touchscreen, something that most small children would try without a second's thought. Interestingly, there's even some prior art for this stuff, as Bernhard Schulte pointed out to me. Xerox put together a rather impressive video of its "Digital Desktop" idea that includes many of the concepts that Apple claims it invented. The video dates from 1992...

The only part that might plausibly be claimed as original is that "scroll bounce", but that's hardly indispensable for smartphones – nice to have, maybe, but nothing more. Samsung can live without it in the US if it has to.

Of course, what that demonstrates once more is the totally dysfunctional nature of the US patent system that allowed such trivial ideas to be patented in the first place, and with prior art existing. One minor benefit of the jury's decision is that people seem to have become somewhat more aware of the problems with patents in this area. I'm not holding my breath for immediate patent reform, but every little helps.

Similarly, others have pointed out that the $1 billion award is a terrible signal for the future. It basically says that defending monopolies through litigation is an easier way to make money than competing in the market through innovation. The point being that Apple's absurd cries of exaggerated harm (it's the world biggest company by capitalisation, right?) from others building on its ideas are a little rich coming from a company that has constantly – and rightly – drawn on and improved upon existing work (notably at Xerox PARC.) By awarding such a large fine for such trivial ideas, the jury seems to be sanctioning Apple's attempt to paint itself as practically the inventor of the smartphone, and therefore the guardian and owner of its basic ideas.

But that's ridiculous. The key breakthrough was not Apple's, but whoever came up with a touchscreen technology that worked. I remember using back in the 1980s an HP-150 that had a touchscreen, so the idea itself was not new. What transformed the sector was technology that would work at high resolution on an object the size of a phone. Practically everything else followed from that – including, and especially, the idea of dragging documents that Apple ridiculously claims in its patent.

It's also worth pointing out that Samsung is no hero in this case: its attempt to use standards-critical patents against Apple was pathetic, and shows neatly why FRAND licensing is inappropriate in this context: RF is the only way to go to prevent this kind of abuse.

However, the real issue is what effect this ruling, if it stands, will have on the larger Android ecosystem – and hence on the open source software that underpins it. I'm optimistic that Apple's "win" will actually prove damaging for the company in the longer term, and could provide a nice little fillip for Android and its supporters.

First, there is is the increasingly widespread perception that Apple has turned into a dangerous monster. In a sector where its products are widely admired, and where its profits are huge, its decision to sue Samsung over things like rounded rectangles comes across as petty, playground-level bullying. You don't have to be a technical or patent expert to see why granting patents on something as fundamental and functional as rounded rectangles is madness.

What's deeply ironic is that as Apple turns into the new Microsoft, it actually sows the seeds of its own destruction. After all, Apple sells itself at least in part on its coolness (remember that English judge?) Apple's products are just as well-designed and good-looking today in the wake of the court case, as they were before. But something has changed, thanks in part to the courtroom spectacle of Apple and Samsung's lawyers slugging it out, trying to land as many punches below the belt as possible. Apple has lifted the veil and in doing so, begun to destroy its own mystique and magic.

Of course, Apple will continue to sell huge numbers of iPhones and iPads, and continue to make huge profits; but now it is just another manufacturer trying to flog more shiny stuff to people more often. That's dangerous, because it leaves plenty of room for new fashions and new favourites to emerge. Moreover, Apple has just given Samsung and the other manufacturers of Android handsets a huge incentive to innovate and differentiate themselves as much as possible.

Similarly, the Android ecosystem will be developing in all kinds of different ways – in fact, the more novel they are, the better, since there is less risk Apple will start swinging its big patent stick again. And so we are likely to see new impetus being given to the world of Android – at least by the more ambitious companies there (some might drop out.) That's good news for open source, since it will lead to Linux being rolled out ever-more widely, and to free software coders being even more in demand.

Of course, none of this is inevitable. Lots of things could mess up this vision of turning problems into opportunities. But the open nature of the Android ecosystem is a huge strength here. Even if companies like HTC or even Samsung decided that they will scale back their Android operations because of fears about what Apple might do in the courts, there are lots of extremely hungry Chinese manufacturers who are keen to increase market share in their huge home market, which itself is already completely dominated by Android, and to extend their reach elsewhere.

So, even if the appeal fails completely, life in the convergent computer and mobile markets is likely to be more of the same, with Android increasing its market share everywhere (with the possible exception of the US, where Apple has a home advantage), and with Android – and Linux – being deployed in ever-more weird and wonderful ways. Now, if we could just get the US patent system fixed...

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