Patent Wars: Is Android a Casualty?

On Friday, a hammer fell:

The nine-member jury sided almost entirely with Apple Inc. in its patent dispute case with Samsung Electronics Co., awarding Apple nearly $1.05 billion in a “sweeping victory” over claims that the Korean electronics maker copied the designs of its iPhone smartphone and iPad tablet. {…}

The damages total was at first $1.051 billion, but that became a tentative number after Judge Koh asked the jury to review two “inconsistencies” in the award, totaling about $2.4 million. After deliberating, the jury came back and gave a new total of $1,049, 393,540 — or nearly $1.05 billion. {…}

Apple and Samsung will return to Judge Koh’s courtroom next month to argue over Apple’s request for an injunction to stop the infringing products from being sold. Mitby said it’s likely Samsung will appeal to the Federal Circuit, the Washington, D.C.-based appeals court that hears patent-related appeals. “The Federal Circuit has a history of scaling back big damages awards, which may spell trouble for Apple’s $1 billion in past damages,” he said. “However, on the core issues of infringement and validity, the Federal Circuit is less likely to reverse. So even if Samsung is able to reduce the monetary award, the jury’s decision spells trouble for the future of Samsung’s product line – which is an even bigger financial issue for Samsung.”

Forbes is all over this, coming down mostly but not entirely against the verdict.

I myself am pretty irritated with, in ascending order, Samsung, Apple, and patent law more generally. I am rather horrified by the verdict and what it will mean for those of us that simply don’t want Apple products but also don’t want products that can’t do anything around a minefield of patents.

I am irritated with Samsung because they were the most egregious of the copycats. I own a Samsung phone, though it’s a notably different design and I almost immediately went to work making its interface less like the iPhone’s and more like the SPB interface I am more accustomed to. I don’t want these companies just trying to do their best Apple impersonation. I also don’t want the patent minefield. I mean, looking over at the patent list, most of their inclusions strike me as unnecessary. However, the substitute gestures I can think of may all be patented by somebody else. We shouldn’t have a lack of future competitors on the basis of a scarcity of not-yet-patented features.

I am irritated with Apple because I fear that their plan is to go “thermonuclear” with the patents. Samsung uses some Microsoft patents, but they quietly signed a deal with comparatively little fanfare. It’s not clear to me that, on reasonable terms, Apple couldn’t have cajoled them into the same. I don’t think they want to. Mostly, though, my disdain for Apple is that this ruling makes it harder to “live and let live.” I don’t want an iPhone. The things that drive me to Android are the things that differentiate it from the iPhone. But for others, the iPhone is perfect. So they get the iPhone, I get what I want, and it all works out. That becomes harder when Apple is trying to prevent me from getting the phone that I want.

And, of course, patent law. Though I consider the lifted patents to be unnecessary for the function of a good device, I also don’t see anything that should be patentable. Patents and intellectual property occur for the promotion of progress in science and the useful arts. It quite simply isn’t possible to look at Apple and say that they were not reasonably rewarded for their innovations. What if it had been a little company? Well, Dropbox comes up with a neat model before Google swoops in and uses its standing to offer a better deal with Google Drive. That’s unfortunate for Dropbox, but Dropbox having come up with the idea should not mean that Dropbox is the only one that should be able to have a competent product. That’s not in the best interest of the general public.

So what next? Groklaw thinks that it could be reversed and has some serious issues with the jury (though Groklaw is not a neutral observer). What has me particularly concerned is speculation along these lines:

What happens now to Android as a whole is going to be very interesting. While the appeals process for this case may go on for some time, there will be a chilling effect on other manufacturers, who will be watching the cost of licensing the patents on the ‘free’ Android OS with trepidation. Expect Apple to be drafting invoices in the very near future. But will the manufacturers who just want a modern smartphone OS turn away from the uncertainty in Android? Will they want a solution that is fully licensed, covers all the patents, and will let them stand out in the marketplace? If so, Microsoft are going to welcome them with open arms.

I used Windows Mobile for several years. The thing is that Windows Mobile’s natural successor is Android while, interface to the contrary, WinPho is primarily ripping off the iPhone model. It’s also significantly behind Android in development. If I wanted an iPhone, I’d get an iPhone. Even despite it’s numerous improvements, I would still prefer an updated WinMo over Android. Now there is concern that I will end up with neither and end up going right back to Microsoft pretending to be Apple.

Will Truman

Will Truman is the Editor-in-Chief of Ordinary Times. He is also on Twitter.


  1. A propos of patents, I don’t have anything substantive to add, but I can recommend a book that might prove interesting to you on the (19th century) history of patents, along with many of the complications that frustrate you: Steve Usselman [sp.?], REGULATING RAILROAD INNOVATION.

    The book is very dense. The first time I read it, I didn’t understand it. The second time I read it, I understood it better. You might find it interesting.

  2. I develop for Android. I wouldn’t willingly develop for the Apple stack. I used to develop over earlier Apple OSes and stacks but I just don’t see the point any more. I want more control over the device than Apple is willing to give me. I just turned down a job for an outfit which does Apple software updates for corporate software development, a sorta-hack which just isn’t an issue with Android devices.

    Apple learned nothing from the Microsoft debacle. Though you may not believe it, I went to COMDEX in Chicago many years ago and Microsoft was handing out boxes of diskettes with the Microsoft toolkits, for free. In those days I still preferred Digital Research’s DR-DOS, since it gave me the option of building a custom OS with only the interrupts I wanted to service. Apple was once the cool kids’ toy. The early Macs were easy to program. The APIs were straightforward, the development path was well-paved and well-marked.

    Microsoft was interesting, back when they cared about developers. OS/2 came along and Microsoft choked it to death. OS/2 was great. All the interrupts were virtualised. The GUI wasn’t stylish but it worked. And OS/2 was secure, still more secure than any subsequent MSFT operating system. Apple saw the light and began to fork BSD, then the most-secure *nix kernel. Didn’t take much trouble to glom the best parts out of BSD and fit them to the Mach kernel. The rest is history.

    I’m technology agnostic. I don’t rate Better or Worse with a technology or development stack: each has its strengths and shortcomings. Furthermore, as a mere-schmear developer/architect, I don’t want to get too far into the internals nor should I have to and if I do, I’ll write an abstraction layer so it won’t bother me any more.

    Screw Apple. Their fall from grace started a decade ago. They took all that BSD code and didn’t pay a penny for it. Watching AAPL turn into a bunch of patent trolls is discouraging. When an outfit stops caring about developers, they’ll stop caring about customers soon enough. But it starts with developers.

    • Thanks for the link. Given the pretty limited scope of the patents, $30 seems rather hefty, but then I don’t fully know how the pricing works. Either way, though, it’s something.

      • Keep in mind, the deal would have only been with Samsung. Also, it’s not surprising that the opening offer would be high. Microsoft reportedly gets about $15/phone for its patents. Also, limited scope or no, the “heaven and earth” comparison is salient – Samsung didn’t believe its products would sell before it adopted the innovations covered by Apple patents that it apparently hoped would eventually be held invalid. I would expect any licensing fees for Samsung’s current generation of phones to be substantially less than either of the previously mentioned figures, due to their lesser reliance on inventions deemed covered by Apple’s patents.

        Both parties have an incentive to settle their claims. Apple benefits from preserving the jury verdict – not risking a full or partial remand or retrial – and the message it sends to other device makers. Samsung benefits from achieving certainty, not just in terms of ending the litigation but potentially in terms of preventing any future claims through a belated licensing deal, and not being required to post a substantial appeals bond. Note, the jury issued a large verdict, but having been found to have intentionally violated Apple’s patents that award could potentially be tripled by the trial court or on appeal – and they can be ordered to pay Apple’s attorney fees. Also, I think both companies would benefit from a resolution that puts to rest all of their litigation in all forums around the world.

  3. samsung had this coming for sure, as you point out. but i’m not that concerned about apple’s patent claims, as i think ics (4.0) on are going in a wildly different (and largely good) direction, and samsung’s newer phones aren’t going to be affected by this if i’m reading correctly.

    actually , i’m mostly concerned about the butt-ugly and semi-functional skinning that manufacturers insist upon slamming on various phones. my wife needs a new phone sometime in the next few months and it’s a real pain trying to find a mid range android phone on verizon that’s not too large and not running some kinda uggo skin of gingerbread that chews up processor time and is in general wildly bloated.

    i bought a galaxy nexus in part because the ui was so clean and customizable out of the box. sadly, it’s too big for her dainty mitts.

    • Looking at the actual patents in use, it sure seems to me that they can move away from these particular things. The only question is whether they would then be bumping up against someone else’s patents. For instance, I had a thought on how to change the icons, then realized that it is (I believe) exactly what Windows Phone 7 did (and probably holds the patent to).

      I’m greatly enjoying Go Launcher. Much better than Samsung’s TouchWiz or Motorola’s Motoblur.

      BTW, you have the creepiest gravatar in all of Loogland. I can’t even say why, but there is something really unsettling about it. What is it?

  4. Ok kind of off the topic but the Hubby and I need new phones he wants a Samsung Note we both have Blackberries now what does this mean for us? Are the prices of Samsung products going to go up/down? I don’t want an Iphone but not familiar with Samsung or any other phones any thoughts

    • If you’re going to get a Samsung, do so within the next three weeks. After that, you will still be able to get a Motorola, HTC, LG, or whatnot*. There has been a huge uptick in the purchases of Samsung products on eBay, though the price seems to have stayed constant. My guess is that if you get it through Verizon, the price won’t change. There is a possibility that prices will drop hugely in order to get them sold before any injunction occurs. Just don’t wait too long, if you want a Samsung.

      * – You’ll still be able to get a Samsung if the judge does not grant the injunction. I’m assuming an injunction here, which is very likely but not certain.

    • I take it back. I just saw a list of what Apple will be seeking an injunction for, and the Note is not on the list. So you should be okay. I actually got the Note confused with another of Samsung’s products. Given its uniqueness, this shouldn’t affect the price much at all.

      • Thanks Will he is really chomping at the bit to get the Note now I just have to figure out what I want. I think the note is too big for my dainty mitts as well

        • If your carrier is AT&T, my brother loves his Skyrocket. Unlike the Note, though, the Skyrocket is on the injunction list so act quickly. As is the Galaxy S-3. The HTC One X is supposed to be pretty good and it’s not going anywhere.

  5. You mentioned that Samsung is a Korean company. Why are they bound by American patents?

    • Because they sell phones in America.

      (It’s worth noting that at the same time a court case here went Apple’s way, one in South Korea went Samsung’s.)

      • What stops me having my “cousin” in Korea buying a Samsung there (one designed for American networks and what not) and sending it to me in the states?

        Oh yea… my “cousin” works for Samsung. And isn’t really my cousin.

        • FYI… any snark is intended for the patent law system, not you.

          Any ignorance is 100% real.

        • I’m not sure of the intricacies, but I think it becomes a big deal when you bring it over and try to sell it in a formal capacity.

          Once upon a time, my dreamphone was under an injunction (the iMate Ultimate 8502) several years back. It became a “gray market item” where you could get a hold of one, but it was tough. (I stuck with HTC, which turned out to be a good thing since iMate went belly up.

      • The litigation in South Korea was a split decision with Apple coming slightly ahead in terms of the (minimal) damages awarded. (But that case wasn’t really about money.)

        “Apple was ordered to pay 20 million won, or $17,650, in damages for each of the two violated Samsung patents. Samsung was ordered to pay 25 million won, or $22,000. Both companies had sought damages of 100 million won, or about $90,000, from the other.”

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