Backroom bargaining could have taken bite out of Apple case
YOU’LL HAVE HEARD, no doubt, of the $1 billion that Samsung has been ordered to pay Apple for violating the company’s patents and distinctive look.Samsung is a Korean hardware manufacturer, and there were always concerns from the Korean press that the local Silicon Valley jury would favour the home player. When the lawyers came to select the jury, they threw out one prospective juror for working for Apple, and one whose son worked for Apple (in the legal department, no less).
If Samsung worried of undue favouritism toward Apple among Silicon Valley digerati, it needn’t have worried. Many here see Samsung as the injured party – and, perhaps a little more parochially, believe the Korean company as being a proxy for Google, another local company made good.
Apple’s iPhone and Google’s Android operating system now vie neck and neck for dominance of the smartphone sector. Like Microsoft, Google licensed its software to independent hardware manufacturers such as Samsung, rather than make phones itself. But Apple has always felt that the Android software was a shoddy visual clone of Apple’s original iPhone. There’s an implication that the Samsung court case echoes Steve Jobs’ anger at what he perceived as Google’s betrayal of its relationship with Apple, and is aimed at chasing away other hardware companies from supporting Google’s Android system entirely.
Whatever Apple’s intent, the company also used, in public, weaponry to which technologists here have a very ambivalent relationship: patent and trademark law.
In particular, a third of the court case revolved around patents on software. Mapping the traditional requirements of a patent, in which an invention must be original, non-obvious, and narrowly defined, to the world of programming, has not been a happy experience for many in the IT industry.
Software patents for supposedly novel ideas that have been repeatedly and independently re-“discovered”, or which have been written to have a far broader scope than imagined, or which stymie the open standards and protocols that have fuelled much of the internet revolution, have led to a great deal of scepticism about their benefits.
That, combined with the general ambience of scepticism to other parts of IP law – especially long copyright terms – has meant that in the cradle of technical inventions, the laws designed to protect such innovation are often downplayed.
Instead, companies publicly justify their large portfolio of patents in “defensive” terms, implying that they would use them only to defend against patent lawsuits by other firms. At the levels at which giants such as Samsung, Google and Apple work, most threats of IP suits are dealt with through secret licensing arrangements, not public spats. Nokia gets an estimated $100 million a quarter from a settlement with Apple over IP infringements in the iPhone; Citigroup has claimed that Microsoft receives IP payments of about $5 for every Android phone sold by HTC.