Why most are wrong on Apple v. Samsung

(Reposted from ConsideringApple)

As you may have heard Apple scored a massive victory over Samsung in court this week, and you also may have seen a lot of negative prognostication about the implications of this decision. Well I'm here to tell you its all FUD. I can't pretend to know why people are expressing these sky-is-falling, Apple is screwing consumers opinions, but what I can tell you is exactly why these naysayers are extremely wrong in their viewpoints. There seem to be several oft-quoted reasons why this verdict indicates [insert doomsday scenario here], so lets examine why these seemingly innocuous viewpoints are actually not indicative of what actually happened in court over the past few weeks.

"Apple started the patent wars"

One misconception I keep seeing is that Apple is a patent bully or that Apple is somehow an anomaly in the smartphone business because they sued Samsung. Well as a point of fact the first modern smartphone suit was Nokia suing Apple over the iPhone. I guess its easy to forget that, it's not like the number one smartphone manufacturer suing the disruptive upstart is newsworthy or anything (but its extremely newsworthy now that the number 3 manufacturer is suing the number 1 manufacturer). Also its easy to forget how Motorola sued Apple first (and how Motorola threatened to sue other Android OEMs shortly before being acquired by Google), or how HTC subsidiary S3 Graphics sued Apple first. I guess ignorance of this history is convenient when trying to sell the Apple-as-the-aggressor narrative.

Lets go back even further in history, tech companies suing over software patents has been going on even longer than tech blogging yet the consumer technology industry endured. Amazon sued Barnes and Noble over one-click shopping. Lucent sued Gateway (as a proxy for Microsoft) over entering data on a computer screen w/o using a keyboard (basically picking data w/ a drop-down menu) in Outlook, Windows Mobile, and other products. These are just some of the many examples of companies suing competitors over patents on "simple" ideas. So to say that Apple is somehow using the patent system in a differing manner or even worse arguing that they abusing the system is not only wrong, its being ignorant of history.

"Apple is competing through litigation."

This is just flat-out wrong. I keep seeing "Apple only sued Samsung because they are scared" or as Darren Murph from Engadget so absurdly put it "Samsung was simply made an example of because it's the only phone maker in the world that's actually pulling in meaningful profits besides Apple". That is laughable. As stated above Apple's patent litigation didn't begin with Samsung, and it didn't even begin when Samsung had any significant market share. So is Murph basically postulating that in July 2010, despite Samsung currently occupying the #4 spot among smartphone manufacturers, Apple was able to look into their unannounced iCrystal Ball and glean that in two years Samsung would become the #1 smartphone manufacturer. I guess if you accept that to be true Murph has a point. You have to accept this because 2 years ago when this current litigation was in its inception Samsung was not in the market position they are in currently. As The Verge uncovered, as far back as Q4 2010 Apple was in talks with over intellectual property issues they had with their devices. At that point Samsung was in 4th place in the smartphone marketplace and 2nd behind HTC among Android OEMs. At that point all the top players excluding RIM were all involved in litigation against each other, so Samsung "wasn't made example of", they were just another player who became involved in patent litigation. If anything Apple didn't want to enter into more litigation, and Apple attempted to resolve their issues with Samsung before suing.

Another problem with this reasoning is that it ignores all the earlier history laid out above. Apple didn't start the suits. How can defending your company against other lawsuits then subsequently launching similar suits be misconstrued as trying to compete through litigation? Did they bait other companies to sue them first so that they could sue other OEMs without looking like the aggressor? Or did Apple see the market leaders Nokia and Microsoft suing Android OEMs for violating their intellectual property and decide to follow suit? There's a reasonable answer and there's an unreasonable one, and of course the reasonable answer is that Apple was simply behaving as a rational actor by protecting their intellectual property interest just as all of the other major players had done before. Unfortunately it seems most tech bloggers are intent on picking the unreasonable answer though. And what about Google, are they also competing through litigation? Google now completely controls Motorola, and last week Motorola launched new suits against Apple. Was this met with outrage? Of course not because outrage in the tech world is a one way street that only leads to Cupertino.

"The jury was biased/didn't do it's job"

The jury had no vested interest in Apple winning. Only one had an iPhone and only one other juror owned Apple products (that juror also used an Android smartphone). This view also extremely demeaning to Samsung's attorneys. Both parties have to agree to potential jurors, so if the jury was biased it means Samsung's attorneys lost the case due to bad lawyering before it even began due to their inability to strike any potentially impartial jurors.

Another ill-informed argument I see is that the jurors didn't do their job . The first reason people are aping this argument is that "legal experts" predicted the jury would take longer. Why did they predict this? Apparently the standard they used to determine this is where the jury reread each patent and taught themselves in the relevant art. Well that's actually the job of the attorneys. If both sides did their parts the jury would have been taught in the relevant art during the course of the trial. So the jury should have been prepared to rule on the validity of the argued patents the minute they started deliberation because that's the purpose of the trial. If the merit of the jury is determined by how long it took them to educate themselves on the patents at issue then why were they subjected to two weeks of attorney and expert witness testimony? For craps and giggles?

Another thing that people have picked up on is the comments the jurors made that they "wanted to send a message". People are trying to use this as "proof" that the jury had a conclusion and made concepts fit to that conclusion whether it made sense or not. But here's the problem with that, it could have/should have been much worse for Samsung if this was the goal of the jury. They didn't find infringement on every claim for every device, in fact the converse is true. They found infringement on every device for one claim, and for most claims they found infringement less often than they found non-infringement. And on the presumptive slam-dunk, the Galaxy Tab, was found non-infringing. If the jury had it in for Samsung then why did they leave out the one device that no one would have batted an eyelash if they had found infringement? This shows they looked at every product individually and took their jobs seriously. Because the jury felt on a macro level that Samsung copied Apple does not affect their micro viewpoint on individual devices because the macro can be justified if they found infringement on just one device. Maybe it will be clearer if we take it out of the courtroom. "The Los Angeles Lakers are winners". Does this statement mean the Lakers win every game? Every championship? Of course not, it means they have. To determine the validity of that statement you have to look at the games, and at the seasons. This is what the jury did, so the overarching impression does not diminish the legal legwork that took place in the jury room.

"This will be overturned on appeal"

I love legal analysis that just skips the "why" and just heads straight for the "how". People who have problems with the verdict due to brand-centric rationale keep saying "this verdict doesn't matter because the verdict will be tossed out. Now it may be tossed out, but the standard for review is even higher at the appellate level so this isn't likely. And the areas of "error" in this case are tenuous at best. People point to excluded evidence. Is this enough for a reversal? I doubt it. What was excluded was a phone that was pretty far from the iPhone, and a design study that Apple quickly refuted with an even earlier prototype. Doesn't seem like case changing material to me, but I guess the court could disagree.

Also people are arguing that the verdict will be overturned b/c the "jury didn't read the instructions." Well I guess that would be sound if Judge Koh didn't read the instructions in their entirety to the jury before deliberations began and made them certify that they understood the instructions. So at best the jury didn't re-read the instructions before beginning the extremely long process of determining the validity of the patents in question and examining each and every device. Again I doubt the court will overturn a jury verdict because the jury didn't read something a second time less than 72 hours later. Again, not saying this won't happen, but if these are the best arguments detractors can muster

(also mentioned is the lack of literal bounce back on the Nexus S 4G, but we can presume the jury found this way under the Doctrine of Equivalents so I doubt this will even be mentioned at the Appellate level).

"Samsung did nothing wrong"

To me this is where all argument should end. If you have a problem with this verdict because you think Samsung did nothing wrong then you simply weren't paying attention. Its clear Apple was within their rights. They had valid patents. They had evidence that Samsung willingly looked to the iPhone as a guide to making a modern smartphone. They had the words of the Chairman of Samsung saying they should make devices more like the iPhone. They had a report produced by Samsung with side by side comparison of the phone that would eventually reverse their fortunes in the smartphone arena. The report goes feature by feature highlighting how the design of the phone should mimic the iPhone. And lets just use common sense. Look at their charger design. Their adapter design. Their computer design. Their store design. Their actresses. Their displays. Its pervasive and it speaks to a corporate culture that has no problem looking to a chief rival for inspiration on a repeated basis.

"This decision is bad for consumers"

No, its really not. One reason it's not is that Samsung has already moved past their presumptive Apple obsession. The second reason is that Android has already been designed around many of the patents in the case, Samsung just has to use those stock functions. The last reason is that this encourages innovation in the marketplace by discouraging other companies from simply looking to the market leader for ideas. Instead of derivative designs like the Galaxy S line consumers get inspired design like the oft-heralded, Apple cited Lumia 900. This pushes the marketplace forward because other vendors have no choice but to innovate. Its not a bad thing, its a great thing.

Summary

I'm not arguing this ruling was perfect, that the patent system is perfect, or that Apple is perfect, but it is very obvious that Samsung's ascendancy was made on the back of Apple's good will with consumers. This case centered around the Galaxy S line. Pre-Galaxy S Samsung was barely edging in front of Motorola for 2nd place among Android OEMs, and 4th place overall. 2 years after those devices they are the leading smartphone manufacturer in the world. Their Galaxy devices were so similar to Apple's that even Google noted resembled the iPhone and that device became the best-selling Android line to date. Their fortunes turned around after the Galaxy S, so copying Apple was unquestionably good for their business. The counter argument to this seems to be that everything Apple did was obvious. Well here's an actual question: if it was obvious why was there a "crisis of design" for Samsung? Why did Samsung have to produce such a comprehensive document of how they can make their devices like the iPhone? If it was obvious why did so many industry executives and analysts predict it would fail? Because it was not obvious. Hindsight bias is at play yet again (and likely will be in 5 years when everyone calls whatever Apple does with the television obvious then).

Samsung took a shortcut to success, this is without question. I didn't cheer lead this decision nor do I feel Samsung devices are wholly unoriginal (I've owned a Galaxy Tab and a Galaxy Note and currently own a Galaxy Nexus), but Samsung had the opportunity to avoid this. They could have listened to Google when they warned Samsung the designs were too close, they could have stuck with a less iOS-ified version of Android, they could have taken the license when Steve Jobs offered it in 2010, or they could have put out clearly distinguishable products like the S III instead of the derivative products they put out in the past. But that is all over now, and so is this case. Apple played by the rules and they won fair and square. Now its time for the industry to move forward. All the FUD coming out does no good to Apple or Samsung. Apple's side shouldn't (and isn't) gloating, and Samsung's side shouldn't (but is) be putting out hyperbolic statements.