Musings on Apple v. Samsung

on August 16, 2012
Reading Time: 4 minutes

As you may well know, the tech industry is currently enthralled with the Apple v. Samsung, Samsung v. Apple patent and trade dress trial. I’ve been reluctant to talk about the trial. As a wise man recently told me, the trial is bringing out a whole new level of stupid in people. No matter what I say, no matter how carefully I craft my words, I’m sure to offend somebody – and perhaps a whole lot of somebodys – and subject myself to emotion laden attacks and irrational rants springing from that newly tapped fount of stupid.

Still, I’m going to risk it. Because it’s not just Apple and Samsung who have to live with the results of this case. We all will. And there’s a few things that we should try to get straight in our minds before the trial comes to an end.

Question: If Apple or Samsung wins, will it forever alter the tech industry?

In a word,”No”.

If Apple loses this case…life goes on. Apple will have lost virtually nothing. There will be a legal precedent making it even harder for Apple or anyone else to protect their patents and trade dress. But Apple’s been living with the real or imagined consequences of that reality for years and years already. Losing the case will not change how the parties act, it will simply reinforce the status quo. A Samsung victory might even increase innovation as Apple, and everyone else, realizes that patent law is a poor form of protection and that the only real way to compete is to outrace your competitors in the marketplace. And that’s not such a bad thing.

If Apple wins the case…life goes on. Samsung pays the damages or appeals the case or whatever. Samsung is not a broken company – not nearly, not by a long shot. Samsung makes a few tweaks to their existing phones and tablets, makes them look a little different, act a little different, and their devices continue to sell and sell very well. An Apple victory might even increase innovation as Samsung, and everyone else, realizes that they have to create unique new varieties of products in order to compete. And that’s not such a bad thing.

Question: Then why is Apple Suing Samsung?

Well, it’s not for the money. Apple is asking for $2.5 billion in damages. Apple makes more than $2.5 billion in profit every 30 days. And they have $118 billion in the bank. It would be senseless for them to have devoted as many resources to this case as they have simply to pick up the monthly rent check.

And it’s not for the injunctions. Most of the disputed phones are already off the market. Some of the rest soon will be. And for those that remain, most can be “cured” of patent infringement merely by making some minor tweaks in their existing software.

And it’s not to drive Samsung out of the mobile computing business. $2.5 billion is a lot of money and Samsung doesn’t sport the hundred billion dollar checking account that Apple does. But Samsung could literally write a check for that amount and then go their merry way. The potential damages – which will be delayed for years and possibly be mitigated by an appeals court – may be substantial but they’re not going to significantly alter Samsung’s prospects or change the balance of power in the tech world.

Question: So why? Why is Apple doing this? What is this all about?

This is a warning shot fired across the bow of the entire computing industry. “Violate our patents,” Apple is saying, “and there is no amount of time, effort and expense that we will not expend to take you to court in order to rectify the matter. “Mess with us,” Apple is saying, “and we will come after you with everything we’ve got. And we are relentless.”

Apple’s purpose, in other words, is to put a stop to FUTURE infringements of their intellectual property.

Question: Will Apple’s strategy work?

Maybe so.

Even if Apple loses this case, they’ve made the point that if your product drifts too close to theirs, they can tie you up in court for years and years. And if Apple wins the case, well, they’ve turned that warning shot I mentioned, above, into a 2.5 billion dollar fusillade.

Question: Is Apple’s strategy wise?

Maybe not.

I see what Apple is trying to accomplish here but, – and this is going to sound strange coming form an attorney – personally, I wish they hadn’t tried to use the courts to solve their patent problems. Seems like an awful lot of trouble for very little return. Feel free to disagree. I’m quite sure that Apple does.

If, in some fantasy world, Apple CEO, Tim Cook, came to me for advice on this matter, I’d tell him this:

“Patents and trade dress don’t much matter. You may have a legal right to enforce your patents, but as a practical matter, they are virtually unenforceable.”

“Apple is a leader. Act like one. Other companies are always going to copy you. Get over it. Out innovate them. That’s what you’re good at. Do what you do best and do it faster than the rest. As a company, Apple will always be a lot more successful in the open market than they’ll ever be in open court.”