Thoughts on the Apple v Samsung verdict

30 August 2012

On Friday Apple won it’s long & drawn out legal battle – and over $1bn in damages – against Samsung. Responses to the verdict seem to fall into two camps:

  1. Those that agree with the judgement because they feel Samsung have blatantly copied Apple
  2. Those who disagree with the judgment because they feel that enforced patents stifle innovation

The internet is, unsurprisingly, awash with opinion on both sides. Personally speaking, I’m in the first camp – I don’t believe it’s fair for Company A to copy Company B’s ideas and profit from it, as Samsung appear to have done. If it’s Company B who takes all the risks and invests the time and money developing something new, and is successful, Company A shouldn’t be allowed to simply copy the results.

Some of those in the second camp think that the notion of patenting ideas – and enforcing those patents – means that there’s no room for others to innovate.

Some also feel that the ruling is going to be bad for consumers because they fear that if the Samsungs of this world have to start paying licensing fees to the Apples of the world, those fees will likely be passed onto the consumer in the form of higher purchase costs.

They also reference the fact Samsung will likely have to stop selling some of their devices as part of the ruling, resulting in less choice for consumers. This is bad, so they say.

I can’t follow that reasoning at all. How do patents stifle innovation? Surely patents force people to think of different ways of doing things? And what kind of ‘choice’ do consumers have if the market is awash with iPhone clones?

As with most things Apple, there’s lots of FUD around. Like Dan Gillmor’s piece on the Guardian entitled “Apple crushes Samsung in quest for global tech domination” – a heavily biased piece based on some fairly flaky assumptions and drawing some rather draconian conclusions.

Take the second paragraph:

[…] we’re likely to see a ban on many mobile devices from Samsung and other manufacturers in the wake of this case, as an emboldened Apple tries to create an unprecedented monopoly.

Samsung sell 151 different mobile phones in the US alone. Apple have indicated that they’ll seek to ban the sale of 8 of them. In other words, if the ban is successful and enforced, consumers in the US will still have more than 140 Samsung phones to choose from. And three models of iPhone. That doesn’t sound like much of a monopoly for Apple.

If so, the ultimate loser will be competition in the technology marketplace, with even more power accruing to a company that already has too much.

This is the rather weak line of argument that if fewer non-Apple devices are available for consumers, there’ll be a lack of competition in the mobile market. Whether Samsung has 10 phones on the market or 1,000, the fact that they’re still producing mobile devices (and will continue to be after the ruling is old news) means Apple has competition. The ruling doesn’t mean Samsung’s mobile division will cease production altogether. And again, Apple sell just three models of phone.

Furthermore, this ‘lack of competition’ argument is based on the false premise that the market comprises of just ‘Apple devices’ and ‘clones of Apple devices’ and that, as a result of the ruling, many of the the clones will have to stop being sold. That’s a very simplistic view: there are phones being sold today that offer a completely different experience to the iPhone – Windows Phone 7, for example. Microsoft are showing that it’s possible to create, market & sell a phone – both hardware & software – that’s vastly different to the iPhone. But such phones – and such companies – are few and far between. Most companies have plumped for ‘free’ and gone with Android.

[…] Apple’s abuse of our out-of-control patent system has given Apple its chief ammunition in its global campaign to destroy Google’s Android operating system, which Samsung (and many others) adopted for its smart phones.

Apple has patents for it’s mobile devices. When Google bought Motorola it gained the latter’s 17,000 patents as part of the deal. When HP acquired Palm in 2010 they inherited 2,000 patents and former HP CEO Mark Hurd has gone on record saying that Palm’s IP was the main reason for the acquisition:

“We didn’t buy Palm to be in the smartphone business … we bought it for the IP.”

So it’s not a one-sided battle. Whether it’s the right battle is another question, but to suggest that Apple are the only company arming themselves is just false.

And it [Samsung] quite plainly did mimic much of the functionality of the iPhone – though it was Apple’s longtime CEO, Steve Jobs, who famously quoted Picasso’s adage that good artists copy and great artists steal.

I don’t know how anyone could misinterpret such a famous quote so badly. Picasso wasn’t saying that by stealing poetic or artistic content lock, stock & barrel you’re automatically an artistic genius.

But in recent years, I have become even less a fan of Apple. It is now the uber-bully of the technology industry, and is using its surging authority – and vast amounts of cash – in ways that are designed to lock down our future computing and communications in the newest frontier of smart phones and tablets.

Apple has a ton of cash in the bank, but to suggest it’s using it for the sole purpose of bullying other companies who operate in the same markets is rather naive. Microsoft aren’t in the dock. Neither are RIM. Manufacturers of ‘dumbphones’ aren’t being sued because their answer buttons are green and have an illustration of a phone handset on them. There’s a subtle difference between ‘similar’ and ‘the same’.

I also fail to see how Apple’s vast cash pile is helping to lock down anything. Apple has authority in the mobile space because of the success of the iPhone & iPad. People continue to buy them. If they were terrible devices, they wouldn’t sell and Apple’s authority wouldn’t be as high. Apple are authoritative because they’re good at what they do.

In the end, Apple will settle for nothing less than outright capitulation by Samsung – and, by extension, other Android device makers […] If Apple is successful, either all Android manufacturers will pay Apple a license fee, or Apple will simply make it too expensive, via lawsuits, for other phone makers to compete.

If Android manufacturers do end up having to pay Apple a license fee, how is it any different to them licensing Windows Phone 7 from Microsoft (assuming that they could)? Whilst a ‘non-free’ Android would be far less appealing for manufacturers, the idea of licensing fees is hardly new or draconian.

Even more than Microsoft during that company’s most ruthless days in the 1990s, Apple wants control over how we use technology. It locks down the iOS, requiring that apps be offered or sold only though its own portal, and limits competition when a developer is doing anything that might have an impact on its own business.

Apple aren’t alone here – Microsoft’s Marketplace is the only way you can get apps on your Windows phone. There are benefits and trade-offs you make when choosing to lock down your operating system. Whilst openistas focus negatively on the ‘locked down’ rhetoric, those of us who have phones free of malware & viruses really couldn’t care less. By choosing to buy an iPhone I accept and agree to Apple controlling how I install apps. That’s fine with me. If you’re not OK with it, don’t buy an iPhone.

And as Apple expands into living rooms – a TV is widely believed to be on the horizon – and beyond, we have to ask: do we want a single company with such influence?

If Apple do make a TV, you don’t have to buy one. And if Apple do make a TV, and patent some aspects of it, and are awarded those patents, don’t be surprised if they go after anyone who attempts to copy them. If Samsung – or anyone else, for that matter – wants to start innovating in the TV space, nobody is stopping them. Go for it. I challenge Samsung to create a TV that’s better than anything Apple could produce. Think they’re up to the task?

[…] those of us who believe we should be able to use what we buy the way we want to use it are less enthralled. We don’t want Apple, or any other company, dictating – in fundamental ways – how we compute and communicate. Yet, that is precisely where we may be heading.

Buy a dumbphone. Install Ubuntu on your PC. It’s not hard to live a life untouched by Apple or any other technology company if you want to. Presumably Gillmor – as someone who ‘doesn’t want any company dictating how they compute & communicate’ – runs a technology setup free from Apple, Google, Microsoft etc.

[…] if Apple can abuse that off-the-rails system to thwart innovation and the iterative process that sees all tech companies build on the successes of the past, the most valuable company in the world will have more power than what it has richly earned through smart business practices.

Again, I don’t buy the line that patents thwart innovation, and certainly not in this case. To suggest that Apple’s current patents mean nothing new is ever going to be invented in the mobile space is ludicrous. Apple invented the ‘bounce back’ idea (the rubber-banding you get when you scroll to the end of a list), patented it and put it into a phone that they subsequently sold by the bucketload.

Apple didn’t invent scrolling. Scrolling is a fundamental part of any UI system. What Apple did was to enhance the feedback users receive whilst scrolling by adding a subtle animation. It gave scrolling a more physical, tangible feel. When it debuted in 2007 it, like so much in the original iPhone, was unique. And different. And new.

Why should Samsung be allowed to simply copy that one idea? As Jason Fried ably put it, “copying skips understanding”:

Understanding is how you grow. You have to understand why something works or why something is how it is. When you copy it, you miss that. You just repurpose the last layer instead of understanding all the layers underneath.

Not having a rubber-banding animation on your phone doesn’t drastically affect the usability or function of the device. By copying it not only are you attempting to profit from someone else’s ideas but you’re missing a chunk of the ‘why’ and the ‘how’, as Mike Rundle notes:

Why did a designer throw out 20 iterations and pick the 21st design to be the one to ship? What led them to the those specific conclusions and insights? What down-the-road thinking influenced the design? Samsung doesn’t know why Apple went with a homescreen with a fixed row at the bottom, they just know that the iPhone is hot and they want all their phones to look like the iPhone in the eyes of consumers. That’s why they stole Apple’s interface designs: to short-circuit the innovation process and jump straight into the line ahead of everyone else.

Surely big, global companies are capable of thinking of other ways to enhance the experience of their devices. Have Apple thought of – and patented – everything? Really?

Also, is it just me, or does the “all tech companies build on the successes of the past” piece read as a sly reference to the urban myth that Apple copied what Xerox were doing at their PARC facility when they released the original Macintosh OS? If it were true, well played Mr Gillmor. But it’s not. As this piece on the New Yorker outlines, it was Apple – not Xerox – who successfully took the idea of a GUI as a means of giving a computer instructions and packaged it into a successful, mass-marketable consumer device. It was Apple who simplified the concept so that normal people could use it. For example, Apple’s mouse only had one button, the Xerox mouse had three. And it was Apple who thought up innovations that are still with us today – the menubar and pulldown menus, for example.

Ultimately, I am of the opinion that there is still room for innovation in the mobile space. The phones we use five years from now will be different to the phones we use today. What ‘different’ means is up to the manufacturers. The onus is on them to innovate and drive the sector forward.

There is room for Company X to come in and disrupt it all over again. But you’re not going to disrupt anything by replicating & regurgitating what already exists. That’s not innovating.

We can have a conversation about whether it’s right for a company to patent a gesture or a UI element. That’s a hot topic and we all have our views. But, in the case of Apple v Samsung, to paint Apple as the bad guy and Samsung as the poor underdog is disingenuous, biased and myopic.

Samsung were caught copying, plain and simple.

Tagged with Android, Apple, Opinion

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