Apple vs the world

How can you tell when a tech market has fully matured? When companies start suing each other for patent infringements. By Alistair Fairweather.

Touch-screen smartphones, once an expensive rarity, now generate tens of billions of dollars of revenue every year. And Apple, a pioneer in this market, is bent on ensuring its rivals don’t profit from its original ideas.

Apple’s first big case has just borne fruit. The suit is against Samsung Electronics, the Korean conglomerate challenging it for dominance in the smartphone market. The initial result is a drubbing for the Koreans. A Californian jury awarded Apple over a billion dollars in damages for infringements to six patents.

Seems fair, right? If Samsung copied Apple’s designs, it should pay. The thing is, the patents infringed aren’t exactly impressively technical. Most of them revolve around the user interface — things like “pinching” the screen to zoom in, and images on the screen snapping back like a rubber band when you scroll beyond their boundaries.

There are other equally petty claims, like the “ornamental” design of the iPhone’s hardware. But perhaps the most ridiculous is the patent covering “a grid of rounded square icons against a black background”.

Many people have questioned whether the jury was qualified enough to decide on these questions, and whether its verdict came too quickly (it deliberated for just two days). The jury’s verdict form does have quite a few critical amendments — including the damages award which was crossed out and changed twice. But, frankly, “pinch to zoom” isn’t exactly hard to deliberate over. We’re not talking 3D chip design or robotic machine tool configuration here.

A bigger question is, should these patent infringements really be worth over a billion dollars? And, more importantly, should Samsung be blocked from selling its phones in the US as a result? That’s the next logical step following a verdict like this.

Anyway, there are more serious problems with winning on such technicalities. Firstly, Samsung will appeal the verdict and, given the jury’s obvious uncertainty, it will probably be awarded one, dragging the case out for another year or two.

Secondly, Samsung is already modifying its designs just enough to avoid breaching these patents, rendering any injunctions against distribution toothless. The smartphone product cycle is less than two years long, so spending three years in court for every infringement is farcical. By the time you get a particular handset banned, it’s already been replaced.

And then there’s the fact that many of Samsung’s putative infringements aren’t even its creations — they are a product of Google’s Android operating system. Features like pinch to zoom and “bouncing” are Android features, not Samsung features. The difference is, Google gives its software away for free, while Samsung makes money out of the package of phone plus operating system. That makes Samsung much easier to sue.

Now that Apple has won against Samsung, its next target may very well be Google. This is particularly awkward since, just three years ago, the two companies were allies, even sharing board members. Things quickly soured after the split, with the ever-levelheaded Steve Jobs promising to “go thermonuclear” on Google after seeing Android for the first time.

Will Jobs now (posthumously) get his wish? Given Apple’s willingness to sue (they are suing Samsung and other rivals in dozens of courts around the world), and given that they are already suing Motorola, a subsidiary of Google, this clash of the titans seems inevitable.

But Apple should be wary of overreaching. As the world’s most valuable listed company (at least by market value), it is in danger of appearing a swaggering bully.

Brand image is incredibly important in the smartphone market. Apple has built an empire on the aloof cool of its image — an almost transcendent sense of taste and style.

Wrestling in the muck over technicalities of law doesn’t befit that image one bit.

• Alistair Fairweather is the general manager of digital operations at the Mail & Guardian
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