Apple vs Samsung. The lawsuit the this first judgement is an incredibly complex matter and many journalists are having an hard time trying to think it through. What’s even more interesting for me is to see how people are perceiving this whole thing, because of course trying to get it all is a lot of effort.
So, let’s try to see some sides of the question.
1. The inevitability of patents today
Apple, like every big company, patents technologies mostly for defensive reasons, not for aggression. Yes, I understand here there are lots of differing opinions and lots of people will probably quote back Jobs’ sentence about “going thermonuclear”: do you really think that Apple would have gone ahead with the lawsuit if it was only for Jobs, even given he’s not with us anymore and they tried to settle a few more times? No, and that’s clear.
Companies that use patent for aggression are called patent trolls, and unfortunately there are plenty of them. The reason is simple: if a big company does that for aggression, it will have much to lose, because it will ruin the brand perceptions, destroy partnership possibilities and so on. Apple now makes noise because Apple is the highest profile company in the world right now, but if you take time to look through all the lawsuits in the tech sector you’ll find a pretty sad scene.
By the way, Apple is getting, on top of all damages, a huge brand hit from this: don’t ignore this when you think about them taking a decision to open a lawsuit against Samsung.
2. The software patent system is broken
The software patent system doesn’t work. It has been demonstrated multiple times in small (see all the problems that these lawsuit generate, for example Lodsys and Helferich Patent Licensing) and big situations (see the how healthy are industries with low intellectual property protection). The problem is that unfortunately the patent system is there and it would be utopian to say “I won’t register patents because it’s wrong”, because you’ll end up like Google that tried to resist that for ideologic reasons and ended up buying Motorola for 13 billion dollars because otherwise it would have been strangled by others’ patent. You can’t live in this industry if you don’t build up a patent library to defend yourself.
By the way the software patent system as it is now is quite recent, it was formalized in the USA in 1996, and patent on average last 20 years.
3. It’s an identity war
Framing the war between Apple and Samsung as a patent issue is wrong. It’s first of all a matter of identity. This war would have happened regardless of the patent system, maybe in different ways, but it would have happened. In any holistic system the “copy” of something is dictated by the presence at the same time of a set of different traits and as such it’s dictated by the perception of the object as a whole. As such, the patent regarding the icons or the shapes of the device is just a lever to fight the identity war, it’s not the central point of the issue.
The other problem here is about the origin of creativity, a philosophical and humanist theme since the beginning of time, discussed for way more than 4000 years. The facet of creativity taken into question here is: what’s the boundary between a “copy” and a “creative” remix? Even the sentence “great artist steal” often attributed to Jobs is in fact from Picasso. This is apparently a simple question to answer, and that’s why many people can’t get why this is such an issue. However, if you ever started thinking about it, you noticed that there’s no way to define when “copy” ends and “creative” starts. Nobody even in the whole history of humanity was ever able to do this.
5. Design patents
If you sum up all the points above, you can reach another perspective yet: since there’s no way to define the boundary between “copy” and “creativity” there’s no patent, law, definition, specificity able ever to define a boundary of what’s one and what’s the other. The only existing thing is defined in the law as a “design patent”, protecting the ornamental aspect of a functional item. A design patent defines a set of multiple traits that define a specific kind of ornament that is able to uniquely distinguish something from something with the same functionality but different aesthetic design. The central point of this is: it’s a set of things, not a single item. There’s no such a thing as a patent on rounded corners. This is something wildly misunderstood, even by experts: see for example The Myth of Pinch-To-Zoom.
6. Patents are difficult to be communicated
It’s a good thing that patents are specific, because it means that on one side you can workaround them but on the other side when they apply such in the Apple vs Samsung lawsuit they can be wildly misunderstood.
The problem is that you can’t be specific in an article and so you need to summarize it up. But it’s impossible to summarize something that requires lots of details, and this is part of the huge confusion about it. That’s why it’s easy for anyone to fall into the rhetoric of “you shouldn’t be able to patent rounded rectangle”, while there’s no such a thing.
This also goes back to the brand damage Apple took. Just have a look at some popular crowd-sourced website and you’ll see the number of jokes against Apple’s “evilness” in “patenting rounded corners”. It’s an impressive demonstration of the social representation process.
7. The Human Jury
On top of this you have also to consider the human factor. There’s no such a thing of an objective jury. If there was, judgement would have been a matter of minutes. So first of all, it’s likely that everyone has some kind of preference for one of the two companies. These aren’t small companies, everyone has heard of them and the human brain is very quick in creating sympathies. They were asked to judge on a matter that’s about creativity (mostly), and to make things even worse they were americans judging in a lawsuit involving the symbol of these times of the American Company. I’m not saying that they maliciously voted in favor of Apple, just that they are humans and this is something very subject to human biases.
8. Samsung copied, but…
It’s obvious that Samsung copied from Apple at this point. From the side-by-side photos, to the own Samsung’ lawyer unable to tell apart the Galaxy Tab and the iPad, to the internal Samsung emails and documents, to the testimony of the juror Velvin Hogan, to the mail he mentions, saying:
“Since it is too similar to Apple, make it noticeably different, starting with the front side ”
— A Google executive feedback in the words of Hyun Kim
The problem is: is that a positive copy leading to creativity, or the negative copy leading to theft? It’s impossible to say in absolute terms, exactly for the point 4 above.
9. The patent reform
This first sentence seeing Apple winning will have a incredibly long term impact. Today almost everyone in the industry is pushing to kill or reform software patents (including Apple and Samsung) but if this sentence will be confirmed it will be a huge setback, reinforcing the current USA software patent system, moving away the date when the patent system could be removed or changed, moving away the date when huge capitals could be moved away from patents and stupid lawsuits to research and development.
This is a huge damage, showing that regardless who’s going to win here, everyone will lose.
This whole thing has also a huge weight from an ecosystem perspective, because it works as a signal to everyone else: partners, companies, developers, investors (see Samsung fall in the Korean Stock Exchange by 7.5 points). A clear competitor gaining from this is also Microsoft because they have a patent sharing deal where no one will sue the other at the condition that none of the parties build clones. And Microsoft with Windows Phone 8 has an excellent player in the market that is clearly different from Apple.
Microsoft is also the demonstration that a company can invest about 3 years in R&D to create a cool, fresh and functional design that is drastically different from anything else on the market, improving even more their brand image.
11. Is the fine really too big?
One thing that is always very misleading is quoting numbers in vacuum. People goes “wooo” and that’s it, but a number in isolation doesn’t mean anything. A $20,000 fine to you is probably a lot, but to a big company is nothing.
One comparison metric could be Samsung’s profits. In the first quarter of 2012 alone it had $5.18 billion in operating profilt, while in 2011 they had $21.2 billion dollars in net income. This means tha the $1 billion fine is about 4% of their last year net income.
On the other side, a report says that Apple accounts for 8.8% of Samsung’s revenue.
So in my opinion the fine is within a reasonable range. It just sounds ludicrous, but it’s because we are talking about the two top market players.
Ah… by the way, some experts are saying that the litigation is costing them half a billion dollars by itself.
And now that you have read all these facets of the problem, it should be also clear that each one of these points above is just scratching the surface. It’s way more complex than this, and I have probably done myself some glaring omission. However, this should be a good starting point to clear at least the most obvious matters about it.