The thicket of lawsuits surrounding the mobile industry has grown to the
point that it is hard for any individual action to stand out. If any case
has managed to make itself visible in that crowd anyway, it is the battle
between Apple and
Samsung currently being fought in the US. The first stage of that battle
has just been resolved, heavily in Apple's favor. It will be some time
before this story truly reaches its end, but some of the more interesting
implications for the industry, and for free software, can already be seen.
Let's take a moment to look briefly at the history of the industry,
because this is not Apple's first attempt to eliminate competitors with litigation. Back
in 1988, Apple sued
Microsoft for the crime of offering a system that placed icons and
overlapping windows on the screen. Apple didn't invent the graphical
display, of course, but it still asserted the right to be the only company
offering such displays in the market. At that time, the Free Software
a boycott; none of its software would be ported to A/UX and purchase of
Apple products would be discouraged. Chances are that an FSF boycott in
1989 failed to make Apple's executives reconsider their business practices
in any serious way, but it did convey a loud and clear point. The boycott
was maintained until after Apple finally lost the suit and gave up.
Apple is currently engaged in a second round of look-and-feel lawsuits; the
big difference is that, this time, they appear to be winning and there is
little response from the community. Indeed, we enthusiastically buy their
hardware and port our systems to it. Perhaps, soon, we'll have rather
This time around,
Apple accused Samsung of violating three utility patents:
(pinch-to-zoom), and 7,864,163
(tap-to-zoom on a web page). Samsung was also accused of infringing four
design patents: D504,889
(rectangular electronic device),
(ditto again), and D604,305
(iconic application directory with a dock at the bottom). The jury
concluded that Samsung had indeed violated all of those patents with the exception
of 504,889, the most tablet-like of the design patents. Apple has been
awarded a bit over $1 billion, and there will soon be discussions
regarding blocking various Samsung products from the US market. Samsung's
countersuit, which involved some patent infringement claims of its own,
lost out entirely.
Amusingly, some commentators have begun to say that this outcome is, in
fact, a significant win for Samsung. For a mere $1 billion, the
company was able to break into the smartphone market in a big way; that
looks cheap when compared to how much some other companies have spent.
Meanwhile, Apple can be said to have proved, in a court of law, that Samsung's
products are just as good as its own; maybe that will translate into more
Apple customers being
willing to check out iStuff alternatives. These ideas seem a little far
fetched, but one never knows.
Victory or not, this ruling will certainly be appealed. There are various
allegations that the jury, in a rush to protect a US company from a foreign
competitor, disregarded the instructions it had been given and did not even
consider many of Samsung's claims. But, even without the possibility of
invalidating the jury's ruling, an appeal would make sense: it will keep
the matter open long enough for most of the products involved to reach the
end of their normal commercial lives, and large monetary awards are often
reduced on appeal. So expect this story to play out for a while yet.
It's worth pointing out another reason for this story to be a long one:
this is not a USA-only fight. Apple and Samsung are fighting the same
battle in several countries around the world; one amusing result is that
products from both companies have been banned in South Korea. Samsung has
been struggling in Germany as well; other countries could well join the
list. Software patents may be mostly a problem in the US, but design
patents are much more widely recognized.
One good thing about design patents, though, is that they are usually
relatively easy to work around. Indeed, Samsung is already doing so; for
details, see The
Samsung Galaxy S III: The First Smartphone Designed Entirely By Lawyers
on the Android Police site. The device in question (The
Galaxy S III) is not quite
rectangular, uses a different rounding radius on the top and bottom
corners, is not black, etc. Only one of the workarounds requires software
changes: the dock disappears when the application directory is brought up.
Mostly trivial stuff; one may argue that giving Apple a monopoly on black
rectangles with rounded corners is unfair, but it also does not make things
that much harder for competitors.
The utility patents are another story, of course. Arguably the most
significant problem in this
particular set of patents is the concept of zooming the display with a
two-finger gesture. That gesture has become sufficiently universal that a
device lacking it will feel decidedly inferior. As numerous commentators
have noted, it is somewhat like giving one automobile manufacturer
exclusive rights to a circular steering wheel.
But the real problem is that things won't stop there. Every company
involved in this market will continue to bulk up on these patents, and they
will continue to assert them against each other. Many of these patents
will come closer to what we do in the free software community. It will
become increasingly hard for anybody to field a mobile product until
somebody, somehow, cuts through the thicket.
What is really needed is some
sort of reform of the patent regime. Perhaps this very case, should it
make it to the US Supreme Court, could play a role in that reform. Failing
that, we're left depending on politicians to fix the problem; that,
unfortunately, seems like a long shot indeed.
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