In my last post I mentioned the number of questions raised by this on-going battle between Apple and Samsung. This post will outline what some of these questions are.
1. What’s Going On? 
We all know what this fight is about in terms of IP infringement, but what is it really all about? Can it really be as simple as two massively successful companies bickering and spending millions (potentially billions?) in legal fees, over products that look similar?
I mean, let’s face it, one could argue that all phones and tablets look the same on some level. If you ask people of my grandparents’ (and parents’) generation, I would bet that the vast majority would not be able to tell one from another. (This obviously does not apply to the most tech savvy of that generation, and this comment does not intend to offend or be ageist in any way…)
But the point is this: why would two companies, both of which rely on the other at some point in their respective supply chains, target one another to such a relentless extent?
It has been reported that Samsung had an informal policy not to sue Apple, but abandoned this approach after Apple launched its first infringement suit against Samsung in April 2011. And it is widely believed that Apple generally takes a non-aggressive approach when it comes to suing others for IP infringement.
All of this leads me to the conclusion that there must be something else going on here. Is this about locking a competitor out of the market (if so, the ITC and EU anti-trust probes are likely to put a stop to this – more later) or does this go deeper?
It has been revealed since Steve Jobs passed away last month that he had sworn to “destroy Android”, aiming his onslaught specifically at HTC; however, perhaps this fight with Samsung has been a back-handed way of causing another Android smartphone manufacturer problems. It would certainly make sense as Samsung was said to have overtaken Apple in smartphone sales earlier this year.
One thing that just doesn’t sit right about this theory, however, is why two companies would spend so much time, effort and money on this. Would the funds not be better invested in technological development?
Apple specifically is renowned for being a retailer; it was one of the most popular online retailers in the UK this year, second only to Amazon. Perhaps part of the image Apple has of being consumer-centric is what lies behind Apple’s determination to stop similar looking products being produced by Samsung?
Having said that, if you go to any online store and browse the variety of tablets, one could argue that they all look really quite similar (at least in respects of the European patent described in the last post)…
2. What effect is this having on IP law and policy?
This situation does nothing to temper those arguments that IP prohibits rather than promotes innovation. Especially now that IP is featuring so much more in the mainstream press; it a shame that such negative connotations are being inferred by battles like this.
Although usually I am in the camp that favours IP and believes that it does further innovation, in this case I would argue that innovation is being hampered: not because of IP, but because of the way IP is being enforced. If Samsung and Apple got around a table, hashed out some cross-licensing deal and invested the rest of the cash reserved for legal expenses into R&D, innovation would be furthered.
Instead, they are both pouring the cash into legal representation and court fees and at the same time drawing the attention of the worldwide public (who most likely are thinking that their favourite brands are not living up to expectations), and making IP look like the ugly sisters preventing Cinderella from going to the ball.
It has been said that Apple attempted negotiations with Samsung right at the beginning of this debacle, but that Samsung was not willing to play ball. Whether or not this is true I don’t know, but if it is the case it is not going to look good for Samsung in court, under the FRAND licensing rules.
And it is in relation to FRAND that the ITC and EU anti-trust probes have been instigated. The EU probe was started on their “own initiative”, to look at the way standard-essential patents (as owned by Samsung, not Apple) are being used/abused in this battle.
This could be the defining aspect of this litigation: Apple is already succeeding in obtaining injunctions against the sale of Samsung products, whilst Samsung has so far failed to stop iPhones and iPad sales. The fact that the nub of Samsung’s claims lie in 3G-related patents, the most important of which were declared by Samsung as standard-essential, could be Samsung’s downfall in this case.
By definition, Apple has a right to use these patents in its technology. Samsung has an obligation to license the patents. If I had to put my money on one party ‘winning’ this tussle, I would be backing Apple.
I say ‘winning’ – I’m not sure whether it can be said that either party will be a ‘winner’, but litigation eventually has to go in favour of one party…
3. What’s next?
Only time will tell whether there will be more suits filed in more countries, although my suspicions are that having already filed in the major jurisdictions, the focus now will be on seeing the current lawsuits through to some kind of an end. Whether this is going to be a cross-licensing arrangement or not, it is hard to say, although I think it is going to be hard for Samsung to avoid granting any licences at all.
The outcome of the anti-trust probes is going to be an interesting one to watch. It is also feels as if this case/these cases could be pivotal in the telecoms patent litigation story. Whether this is true or not will only be ascertained after it is over, but what is certain is that the world is watching this one like a hawk. Whatever the outcome, it is going to shape the way the mainstream media view and report on IP in the near future.
For Samsung, it seems, rightly or wrongly, that their smartphone and tablets look too similar to Apple products, which is something that is not too difficult to rectify. For Apple, if they are found to be infringing patents which have been declared standards-essential, they will be relieved to be granted compulsory licences by Samsung, even if only on the instruction of the courts.
For me, it would make much more sense to invest at least some of the money which is earmarked for the lawyers into developing their 4G technologies and moving forward from this.
As comfort to Apple, I am not convinced that it matters too much if other products look like Apple products: there is always a loyal following queueing up outside Apple’s stores the night before a new product release. How many others can say that? I know that Samsung can’t. And these people (and others that are perhaps less crazy, but still fans of Apple products) will select Apple again and again, even if there is a product on the market, similar in look and feel, that costs half the price.
And no matter how hard Samsung or others try, that kind of thing just cannot be copied.
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