Groklaw is Wrong (again)
Here’s a challenge: read this article from the immensely popular Groklaw without imagining the author hyperventilating while typing it. Failed, didn’t you? But in all seriousness, “analysis” like this serves no one. It’s not just wrong, it ignores the real issues at play. But let’s demystify this incredibly complex narrative structure formed by Groklaw.
Android is eating Apple’s and Microsoft’s lunch in the marketplace, because people love it and OEMs love it, so the proprietary world has apparently decided to use the legal system give them a win there, since they can’t win fair and square in the marketplace.
Well, this is wrong for several reasons. I debunked the “Apple sued first theory” here as well as the theory that Apple sued because they couldn’t compete. But, let’s look at a deeper thought – marketshare=/=”winning”. What is the point of a publicly traded company? Bragging about market position? Of course not, it’s making money for the shareholders so they make a return on their investment. And Apple is winning hands down in that metric. Most valuable company in the world? Check. Control of the profits in the industry? Check, by an overwhelming margin. Android is winning in one metric – marketshare – and that metric isn’t even as simple to evaluate as it seems (it’s the economics of Android, not the popularity, that’s why its success is limited to phones where there’s heavy subsidization rather than broadly like iOS where PMPs, set top boxes, and smartphones have strong sales).
They have copyright, they have patents, and now they have a new weapon of choice — trade dress and design patents — thanks to Apple.
I’m sorry, but that’s laughable. Trade dress and design patents existed for decades before Apple Computer was even formed, and those theories of law are used in a multitude of industries. The only difference is that companies like Calvin Klein don’t have fanboys screaming bloody murder when they are sued for violating another company’s design patents. So, what the author really means is that Apple shouldn’t be afforded protection under the Lanham Act, or that Google should be able to skirt being held liable under the law. Because for every other industry this is the norm, but when Apple used it the system has somehow been abused.
Then this gem:
But, I hear you say, that’s anticompetive behavior. Isn’t that patent misuse? Misuse of the courts? I think it is. But I’m not a lawyer. And antitrust law is complicated, and thanks to folks who think business should be unregulated, it’s a little bit toothless at the moment.
I think the key phrase in that line is “I’m not a lawyer”. And if it’s patent misuse then isn’t Google guilty of the same thing (they are seeking to ban iPhones, iPads, and Macs through Motorola – what about consumers [and their engineers])? Also, suing your competition is certainly not related to antitrust law, but I guess she seems to think that Apple having a monopoly on iPhones runs afoul of antitrust law. What she doesn’t understand is the first thing they teach you in patent law: patent laws were created to give monopolies on inventions to encourage inventors to invent and disclose their inventions. So, what Jones is trying to articulate is that Apple is using the patent system exactly as it was intended, but she seems to think the whole system shouldn’t exist because it prevents Samsung from making iPhones.
And it continues:
Now, [Apple] wants to make sure no one else can offer what it offers, even in such basic elements as rectangles with rounded corners and rows of brightly colored icons or ways to touch a tablet that are simply intuitive. Intuitive is just another word for obvious.
Several problems with this line of reasoning. A common misconception/fallacy is that Apple “patented a rectangle”. They didn’t. They patented a specific shape, this one:
Now this is not the only way to design a phone. Apple cited examples including this:
Both are quite stunning designs and both look nothing like the iPhone. How did Nokia and Sony do this? Mysticism?!! They did it because, unlike Samsung, they didn’t obsess over the iPhone, they came up with their own design. Another problem is that she tries to use a legal term of art, obviousness, by applying the layman’s definition. Nothing Apple did was “obvious” at the time they did it because people would have done it already. Here’s actual legal analysis on “obviousness” by a patent attorney (hint: he disagrees with Jones’ assertion).
Here’s where it really takes a turn:
Why should it be the law that only Apple is allowed to meet the public’s expectations on what a device should look like or how it should work? The fundamentals should be free for everyone to take and improve on…that’s the same thing as saying only Apple gets to sell what the public wants. It needs to control the entire world’s phones and tablets?
Wow. I never thought I would have to explain to someone the concept that you don’t just get to steal someone’s ideas and pass them off as your own, but apparently I do. I can’t legally steal someone’s writings and put my name on them, that doesn’t mean that person has control over words; it just means that person has control over how they uniquely arranged words. You don’t get to just say “hey let’s make something that looks like an iPhone and slap our name on it”. Other companies can make phones and tablets, as mentioned several times, Apple conceded as much, but you can’t just ape the look and feel of another company’s work.
Then a brief period of sense, followed by hysteria:
I know. You will say others can do other kinds of smartphones and tablets. True. If all the patents in the world were just these Apple patents, we could maybe work around this. But there are many holders of patents that related to smartphones. This isn’t the end. It’s just the beginning.
So, she understands that what she is arguing makes no sense because of the arguments I outlined above, then she lost me again “there are many holders of patents that related to smartphones”. Right, this is a good thing. If all parties are bringing innovation to the table you get cross-licensing agreements to the benefit of both parties like Apple and Microsoft. It reduces patent litigation. But when you borrow ideas and have and extremely weak portfolios of your own patents due to your nature as a copyist rather than an innovator you just get sued (or if that’s the position you’re in you spend $12.5bn to get someone else’s patents).
More ignorance of the law:
Yes, Apple was the one that demonstrated that taste matters to the public. But now that everyone wants that, should it really be the law that only Apple can provide it? No one else is allowed to be beautiful?
Yes, that is exactly what the law states, and as we already established there are non-infringing ways to make beautiful and simplistic designs. You don’t get to rip off designers, so why should OEMs get to rip off Apple?
And finally her real argument:
Those of us who don’t want Apple products have to have lesser functionality on uglier devices?
That is exactly right. She doesn’t want a smartphone, she probably doesn’t even want an Android phone (Google has been steering clear of Apple for quite a while), she wants an iPhone but “doesn’t want Apple products”. She sees that Apple products are superior to the competition, but instead of the competition stepping their games up and competing she just wants them to make clones of Apple devices so she can get the look and feel without supporting the company. And that is precisely what this case was about! When Samsung started making these infringing products, the iPhone was on one network in the US, and the main reason people weren’t buying the iPhone is that they didn’t want to leave their current network. So Samsung decided to serve this market by making iPhones instead of making smartphones (it’s no coincidence the Galaxy S variant that looked the least like an iPhone was on AT&T because Samsung knew if AT&T customers wanted an iPhone they’d just get the real deal). This is why they were sued, and this is why they lost. And no, of course they didn’t/don’t have the right to copy Apple wholesale for those who don’t want/can’t get the iPhone. That is what the patent system was set up to protect against, so the verdict reached by the jury was exactly what justice required.
Now, let me be clear, I’m not saying this ruling was perfect, I’m not saying Apple is perfect, and I’m not saying the patent system is perfect. What I am saying is there are real issues and there are fake issues that are not based in reality. The tech media isn’t discussing the real issues and they are clouding what actually happened in the courtroom, what happened in the mobile industry the past few years, and what the verdict means for the future of the mobile industry. This is but one (oft quoted) example of people conflating issues, abusing terms of art, and otherwise not understanding what exactly it is that Apple has patented.
Update: I interviewed my patent law professor to provide a foundation on patent law to better understand this case. You can find that interview here.
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