The patent wars: what has the outcome been so far?

A year ago, it felt like the Android was under siege from enemies that were numerous and powerful. Microsoft had forced almost every OEM to take a royalty-bearing licence, was crowing about the fact that Android is no longer a "free" OS, and suggested that this would drive OEMs towards Windows Phone. Apple won their huge lawsuit against Samsung, which seemed to give them a monopoly over basic UI patterns (such as pinch-to-zoom) that are used in every modern smartphone. Apple even had the Galaxy Nexus temporarily taken off the market, claiming Google voice search infringed on its so-called "Siri Patent". This seemed to indicate that not even stock Android devices would be safe from Apple's lawsuits.

At the time, it seemed like Android's survival was genuinely at risk. I was persuaded by analysts like Florian Mueller (I know he hates Google, but that doesn't mean he's wrong) that Android had serious, inherent intellectual property issues. I worried that soon I wouldn't be able to use my technology platform of choice, because lawsuits and overly-broad patents would scare away OEMs and effectively take it off the market.

So what has happened since then?

Well, Apple has yet to receive any of damages it won from Samsung. The amount has been steadily whittled down during the appeals process, and when it is eventually paid, it will be a significant expense but not a crippling one.

More importantly, if we assume that Apple's broader goal was not to win money, but to degrade Android's feature set relative to the iPhone, then Apple has not been very successful at all:

  1. Android still has pinch-to-zoom.
  2. Android still has slide-to-unlock.
  3. Android still has a voice search function which is widely considered superior to Siri.
  4. Android still has a unified search feature.
  5. Android still has a "data-tapping" feature (ie you can tap phone numbers or email addresses in messages and it takes you to the relevant application).

As far as I can tell, there is only one feature Apple has actually succeeded in removing from Android. And that is:

  1. Bounce-back scrolling in menus. Steve Jobs considered this a very important feature, and Florian Mueller has written about how important it is and how strong Apple's patent is, which is probably why it has *never* been included as a feature in stock Android. In my opinion, Android's blue glow is a perfectly good substitute, and I can't say I've ever actually missed having bounce-back scrolling on Android. However, it was briefly added in by certain OEMs such Samsung and HTC, and is no longer used, so I guess Apple wins this one.

Is that it? Is it really the case that Apple has spent years pouring its money and attention into aggressive litigation, and this is what it has to show for it: no bounce-back scrolling in Android? At best, that seems like a Pyrrhic victory.

And what about Microsoft? Yes, Microsoft has forced every Android OEM (except for Motorola) to pay royalties. And yes, this is ridiculous, and an indictment of the patent system in my opinion. But apart from giving Microsoft a big new source of revenue, what strategic goal has this accomplished? Again, if we assume that Microsoft's primary goal was to raise the price of Android for OEMs and spur the adoption of Windows Phone, then this strategy has been a failure. Windows phones and tablets have not succeeded in the market, to point where Microsoft has actually had to buy the last real remaining Windows Phone OEM just to keep it in play.

To sum up: I'm not saying the Android camp has "won" the patent wars. Clearly it has suffered some big, painful defeats. Also, the Android OEMs' attempts at counter-attacking using their standards-essential patents have clearly not succeeded either. However, if you zoom out from the individual lawsuits and look at the strategic level, it doesn't seem like Android has been significantly harmed by any of this. Android is still the dominant OS on smartphones, and is well on its way to becoming the dominant OS in tablets. It still has feature parity with iOS. And Microsoft, despite its legal successes, remains a bit player on ARM devices.

Perhaps it would be fair to describe the situation as a stalemate? The patent wars seem to have inflicted quite a bit of harm on all parties involved, without much strategic benefit for anyone. Perhaps that is why we're increasingly hearing about talk about patent peace: meetings between Apple and Google; the licence agreement between Apple and HTC, etc. Pershaps soon everyone will be able to focus on competing in the market rather than the courtroom? Of course, this is what should have happened all along.