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Summary:

Sound, fury and legal bills — after three trials, the patent battle between Apple and Samsung has changed nothing. It’s time for the companies to declare a peace.

Apple and Samsung just finished up their third trial in three years and flushed hundreds of millions down a legal rathole. What do they have to show for it? Nothing of substance.

In case you missed it, the companies’ latest exercise in absurdism ended Monday when eight jurors met in San Jose to mop up loose ends of a tedious month-long trial that concluded with a verdict that each side had violated the other’s patents, and that Samsung owes Apple $119 million.

The whole stupid spectacle did nothing to further innovation, deter fast followers or expand the market for smartphones. But it did garner plenty of headlines and provide an occasion for gadget geeks to bash each other’s preferred product choices, and for lawyers and consultants to pocket fat fees.

It’s time for this to stop. Apple and Samsung need to stop trying to exploit the country’s dysfunctional patent system and focus on their products instead.

This is a sports match, not a legal issue

Round 3 of Apple vs Samsung in California required jurors to decide if one side had infringed on patents related to “slide to unlock” or cameras — which sounds important, unless you’re aware of how absurdly easy it is to obtain a patent in the first place. There are also strong arguments that a jury shouldn’t be deciding something as esoteric as patent violations in the first place.

The case was ultimately insignificant from a legal or business perspective, but that didn’t matter to Apple and Samsung partisans, who treated every twist in the trial as an excuse to cheer on their favorite side, and to insult their opponent.

Doubt this is the case? Just take a look at the comments on Gigaom or other any site that has covered the cases. A given day’s headline typically launches a new “discussion” that starts with crowing that Apple or Samsung got what they deserved. This, in turn, triggers a cascade of insults (“Fandroid,” “Apple sucks,” etc), most of which contain all the insight of a soccer chant.

In one sense, there’s nothing wrong with rooting for one company over another. Feeling a brand identity to Apple or Samsung, just like having a favorite team, can provide a sense of belonging.

But the legal dispute does little more than provide an excuse for Apple and Samsung devotees to air the same sort of tribal animosities than animate Red Sox or Yankees fans greeting the rival team. The pomp of a patent trial provides the phone fanatics with a day-to-day excuse to shout their loyalties.

Yet did Apple and Samsung really want to waste so much time, money and media air on senseless patent lawsuits that in the end were just marketing?

Countless dollars and hours to change nothing

In sports, at least, one team ultimately wins and takes home the SuperBowl or Stanley Cup (or whatever), and then the season stops. That’s not the case with patent litigation, which may never end. Thanks to the profligacy of the U.S. Patent and Trademark Office, there are so many smartphone patents sloshing around (250,000 by some estimates) that litigants can easily restock their legal arsenals and start all over again.

Meanwhile, it has also become impossible for Samsung or Apple to land a knockout blow. In the past, a patent holder could easily obtain an injunction to force their rival’s product off the market but since a 2007 Supreme Court decision, such orders are much harder to get — meaning that a patent winner must settle for money instead.

It’s true that Apple has so far done better on the money front (with judgments of $1 billion and $119 million), but that’s done little to stop the lawsuits and the endless series of appeals. And, as law professor Brian Love noted, the money from Apple’s most recent victory will largely get swallowed by legal fees.

Even on the rare occasions when one side can get an injunction, the “victory” is nugatory since innovation in the smartphone market moves faster than the legal proceedings; any product hit with an injunction is likely to be an outdated product in the first place.

In the case of the Apple-Samsung trial, the two sides have accomplished little other than to validate critics like the late Nobel-prize winning economist Gary Becker, who recently called for the end of software patents, and described the overall patent system as “too broad, too loose, and too expensive.”

However, that doesn’t mean that there weren’t any winners in the Apple and Samsung trials. The litigation has at least proved a bonanza for lawyers and expert witnesses (who among us wouldn’t take $2.3 million to be a “damages expert”), and also feeds an insatiable appetite for tech news. But for consumers and the companies — and the poor jurors obliged to sit through them — the trials are simply an expense and a distraction, that do nothing to promote innovation.

It’s time for Apple and Samsung to sue for peace

Years ago, Apple’s dying CEO Steve Jobs vowed “thermonuclear war” against Google over its Android operating system and, as the Samsung trials show, his company has honored his wish. But such a war produces no ultimate winner and, eventually, there comes a time to stop.

That time is now. Today, the Apple and Samsung dispute does little more than prop up a badly broken patent system to the detriment of everyone — the companies included. Ending the litigation, either through cross-licensing or simply dropping it altogether, would let the companies focus on things that matter like product development and customer service.

Some in the patent-industrial complex will no doubt claim that stopping the smartphone wars will unleash rampant infringement, and end inventiveness. Such fears are unfounded. Not only are patents often a poor policy fit for the tech sector, as the economist Becker pointed out, but companies also have a wealth of other intellectual property tools and business strategies to protect their products and brands. (Apple, in particular, has excelled at this).

The mobile patent wars have run their course and now it’s time for everyone, including the companies and their fans, to move on.

  1. So you don’t think Samsung’s brand is taking a beating? It took them a decade to build their brand and differentiate themselves for other Asian suppliers and that effort is losing value every day. Apple’s strategy may be like a chess game, where they are taking a single pawn at a time, strengthening their position and advantage in the courts, before trying to actually of for the win.

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    1. Thanks for the comment, Gary. I agree that Samsung’s brand may have suffered as a result of their copycat reputation — see this month’s critical Vanity Fair piece. But do you think Apple got their time and money’s worth from the patent litigation?

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      1. Yes. You conjecture that the trials have done nothing. I’d dispute that, but certainly no suits would have done even more nothing.

        If the winnings from the trial are inconsequential so are the costs of litigating.

        Samsung wasn’t just infringing a few weak patents two years ago: their UI, branding, advertising, devices and packaging were aping Apple’s designs (or rather, were aping Apples designs all the way up to the point where it was wise to make conscious differences). Now, for the last two years, they’ve been trying to create their own identity and fumbling around, pushing out “innovations” that are poorly excited or immature, being snarky and derogatory in advertising. Apple much prefers Samsung of 2014 to the Samsung of 2012.

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    2. Only people in the US care that much about it.. and it is mainly in the US Apple wins a few trials. In many other countries Apple would not get a patent on most of their designs and non technical features.. like say.. slide to unlock.. we used that on access panels for military installations 3-4 years before Apple used it in a phone.. and I used the slide to unlock on a Amiga game some 20 years ago..
      But technological patents that has to do with new technology should get patents, and also with special design. Like Apple G3 and iMac (with the colorful fat CRT screen) back in the days. They were unique and cool, especially the G3. Also like the Power Mac G4 Qube.. the design was cool, the functionality not so much. But I still have saved both the G3 and G4,, and will not part with them. They are like.. when design reach art quality.
      Just like a washing machine from Dyson, and the Dyson fan and the Dyson hand dryer… and products like the Wilfa Grafitti hair driers.. or the powerqube electrical extensions.. but round cornes, slide to unlock and so on does not qualify.

      Anyway.. Samsung makes a lot of stuff.. from washing machines, dryers, microwaves, TVs, ships, construction machines, PCs, they have processor foundries, fighter jets and what not. They are a manufacturing company with a lof of R&D and a lot of factories.
      Some of their phones a few years back looked like Apple – but again Apple looked a lot like earlier models/products made by other companies … like picture frames and so on.
      I really don’t think it matter that much.. It’s not like an Apple customer looked at an early Samsung phone and thought.. hmm.. I’ll just buy that insted. They have different OSes, with different features/ecosystems. The iPhone range have not looked modern and up to date compared to other phones for the last 3 generations.. and they are slow to incorporate new technology.. just take MMS or Bluetooth stereo support… it came in 2009.. when even feature phones had i years before. Still waiting for wireless charging, NFC !!! and standard micro USB charging. Micro SD card slot would be nice too – and lack of being able to download torrends directly down to the phone without haveing to jailbreak it.
      I used to have an iPhone for personal use, and a Nokia N900 for work.. but gradually stopped to use the iPhone.. was waiting for a new phone that could replace the iPhone 4.. and was not happy with the look and feel of the next.. waited for the iPhone 5… but is was not enough for me to buy one.. and in a weak moment when the internal battery was dying for good – I got a large ass Nokia Lumia 1520.. took some time to get used to the OS. Easy and all.. was more of getting used to the looks.. but the screen was really really nice, and the camera way better then expected. And since it had Nokia Here, with free map updates – the cars GPS was sold ASAP. They 1520s car holder include wireless charging so when I use it as a GPS in the car, it also charges. NFC is nice to connect to speakes, headphones and to pay for tickets and goods from vending machines. Too bad they didn’t have the 1520 in the Nokia green color though.. anyway.. and it was expansive. Paid almost $ 1.200 for the phone, extra charger, car holder with charger, a SD card and stuff.. But is’s good.
      But most people buy Samsung phones. Usually they cost about the same as Apple iPhone, but they offer bigger screen and some other features .. and Android that most people want.

      Apple should focus on product development, and spend some money inventing new stuff.
      The people in the design department.. are they growing old and boring? Are they not allowed to make new stuff? Why not make more phones, with the same hardware… just new and different look. Not some lame 5C look.. look more modern, like some of the phones from HTC, Nokia, Sony..
      In Europe, in the company I work.. I think less then 3% use iPhone now. It’s getting a reputation for beeing the choise for blond dumb bloggers, children, technologically challenged people and fags.. 50% use a Galaxy product, and the rest use some kind of Android phone.. and we are getting a new Windows Phone user once every 14 days at the most.. so we are reaching at best 5% Windows Phone users.. but they are growing..
      The last iPhone users will never ever change phone brand. They are die hard fans, with an Apple laptop, tv box, ipads and so on.
      When it comes to tablets, I think Apple have at least 25%. They used to have more. 1% is Windows and the rest is Android. Many of the Apple owners have one iPad in the family, but the Android users have a tablet for every family member. Many have 7 or 8 inch for their kids, and a 7 inch that fit in the suit pocket nice – and larger tablets on the coffe table at home. People are eager to test the 12,2 inch Samsung tablet. I’m too, but I don’t have the money. . and the large Nokia 1520 have replaced my Android tablet. Still owns it though.. but the only use of it now is basically for Hay Day :-)

      Apple have a history of just buying the new stuff from other companies. Like the OSX, Siri and so on. Even the company that makes the adustments on the ARM core based AX SoCs were bought. And since they have a lot of money.. that’s an easy way to get new tech.. but I would love to see them develop core technology .. like IBM for example..
      Why don’t they try to make SSDs more reliable for example.. get more read/write cycles before they start to “loose” parts of the storage capasity. .. or mould a battery so that the chassis of the phone IS the battery. Would have been cool for laptops too.

      With all that money I’ve “fed” them with for years.. I expect more. Talk to Nokia (Microsoft now).. get their camera and lense tech.. Will probably just cost a few millions.. Apple can affort it. And if they look at the camera software that Nokia came with now.. the iOS guys can get a lof of ideas.
      And with the advances in technology.. a powerfull LED (that also can be used as a light source for a projector for example) would be helpfull, and a real xenon flash.
      They need new tech and looks. The US and the UK is the only places were Apple has a foothold. They are looseing marketshare everywhere else.
      There will probably be less need to protect the phone when they come with sappire touch screen, and that can give them a lot of design options. The new phone don’t have to look like a deck og cards..

      Why don’t they try to make a phone that would be more like the Ubuntu Edge could have been. A phone that is powerful enough to be used as a PC, and be able to run programs/apps like the PC.. connected to TVs/displays and keyboard and mouse..

      And in general.. why does not phones have 1 TB of storage now? Or at least 512GB..
      Don’t want to use a cloud solution all the time.. more practically to store it in the phone. I use my phone a lot in the gym, watching a couple of episodes of a TV series while I run, or some stuff from the The Great Courses for example. High quality require more storage. And I can not stream this stuff.. with 5GB a month.. I would have to pay extra after less then a week,
      15-30GB for a video course is normal. But with plug and play / drag and drop of files it is easy. . just takes time and require storage. Storage is cheap now. Not all of it have to be quick.. just enough to get fluid video..
      I used to connect my Nokia N900 to the TV screen on the threadmill – but now I usually use the Nokia 1520 because the screen is so nice.. and large..
      I bet Apple comes with a phone like this the next time they release new models. But that is to late for me now. Will have to use this phone for at least 3 years to justify the price. And something new from Apple must be better in several ways for me to want to change.
      I hope they do.. we need the competition. They need new technology and a new design team. And I would love plug and play / drag and drop… just have iTunes as an option for those that want to use it. I’ve been a fan of drag and drop since forever.

      Just my 2 cents..

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  2. The trial established the FACT = SAMSUNG the thief, Apple the rule breaking innovator.
    “What goes around, comes around”.

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    1. US court, US company, US company wins.
      In the rest of the world most of the Apple design patents and not valid.

      Many of the Apple customers think that Apple makes the phones in California too, and don’t know that it’s made by Foxconn in China with Samsung “retina” display, Samsung battery, Samsung memory chips, Samsung made/manufactured SoC (processor). I guess Apple will try to replace Samsung on most of these parts. But there are not that many companies that can deliver the numbers Apple need when they release a new model.

      Without technology developed by Nokia, Ericsson, IBM, Motorola and Samsung there would be no phone designed by Apple. At least not it they all would have acted like patent trolls.

      You will not find many/any hardware designes/inventions made by Apple in their products. The additions (made by a company they bought) to the ARM SoC they use is the only stuff I can think of. They buy technology from other companies, or buy the companies – and then patents different uses of common technologi and their (graphical) design. That is just a fact. OSX/Siri is also examples of software that is based on bought technology.

      Back in 1994 IBM developed and sold what is considered the worlds first smart phone that had a touch interface. They had paid Mitsubishi in Japan to manufacture it. They sold about 50 000 units back then.
      The US was behind northern Europe and Japan back in (the end of) the 90’s and the early 2000.. with a surprising amount of pagers used. When the rest of the west used mobile phones. And had been for years. The change from very primitive feature phones to the iPhone was more of a change then in many other places in the west.
      The way phones are sold now in the US, is also a bit behind Europe, Japan and Korea. Contracts for years AND most importantly.. no widely used roaming between carriers. Carries locked handsets. And you can get shitty coverage if you choose the wrong carrier in your area. Also… the US carriers have to much power.. to many phones never shows up here. I have to order from Europe to get some of the models I want.

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  3. John Hefner Tuesday, May 6, 2014

    This is a typical “report” of the verdict, with little digging and analysis. Again, a failure to even mention that the jury found that Samsung “willfully” infringed an Apple patent and the significance of that finding. Again, a failure to mention the significance of the verdict to litigation between the parties in other countries on the same or similar patents. If the reader will look at the Vanity Fair article published today, or yesterday, there is a recitation of the history of how Apple addressed the Samsung theft of intellectual property; and the apparent financial success that Samsung has made of its infringements. I am an Apple shareholder and am supportive of their efforts to protect the property rights that are the basis for present and future success of this company. Yes, it is expensive. Yes, it would be better if Samsung would agree to stop infringing and litigation would be obviated. However, if the Vanity Fair article is accurate….or even close to accurate…..Samsung has a business strategy of ignoring rules until they are prevented from such.

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    1. ” Again, a failure to mention the significance of the verdict to litigation between the parties in other countries on the same or similar patents”

      You know that the patent that the jury said that Samsung infringed willfully is the one that has been invalidated in almost all the courts were Apple used

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    2. I agree with John. Samsung ignores rules unless prevented from such. THIS is the very reason patents exist, and THIS is why they are vital and valuable to innovation and protection of IP. Sadly, blog writer Roberts does not see this point. He doesn’t see a purpose in patents, and should really study American history and see how patents are designed to protect and preserve innovation.

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  4. TheMacAdvocate Tuesday, May 6, 2014

    Witness what happened in the evolution of the Galaxy S phone: the S II was a farce; the S III was a much more significant departure from Apple’s iPhone design. What changed? Well, Apple launched its legal assault on Samsung in the Spring of 2011 (precipitated largely by the “liberties” taken with design of the S II, which was released in May of that year).

    These “stop the insanity” articles about Apple’s defense of its intellectual property are trite and played-out. The question serious tech journalists should be asking is “What takes the place of the intellectual property everyone is so gung-ho to dump?”

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    1. I agree. Apple has every right to protect its intellectual property. There is no other legal instrument that can take the place of the protection that a patent provides to innovation and inventors. Trademarks are for words, looks and logos. Copyrights are for books, photos/art, and websites. Patents are for products, utilities, and methods.

      Patents have value, and they are the only way inventors can protect themselves from bigger fish who purposefully bully inventors by stealing their inventions.

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  5. “Not only are patents often a poor policy fit for the tech sector, as the economist Becker pointed out, but companies also have a wealth of other intellectual property tools and business strategies to protect their products and brands. (Apple, in particular, has excelled at this).”

    …Says the blog writer with no business and/or products to protect from infringers.

    Keep up with expressing your uneducated opinion, Roberts. Your continual anti-patent doctrine may eventually open the eyes of the public to your socialistic agenda.

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  6. Mack Highest Tuesday, May 6, 2014

    The problem isn’t software patents, it’s the Patent Office issuing patents for applications that patently (see what I did there?) don’t meet their own basic standards.

    I’ve seen so many patents, both in physical things and software, that are clearly obvious, it makes me despair. When an application arrives, the ought to present the problem it solves to a few people “skilled in the art.” If they quickly come up with the solution in the patent, they ought to reject it.

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    1. This already exists. It’s called reexamination, and any issued patent can be subject to a reexamination. The “challenger” who initiates a patent reexamination presents evidence of prior art, and if the patent would be obvious to anyone skilled in the art based on the prior art that existed prior to the date of invention (preAIA) or prior to the date of filing( AIA), the patent can be rejected on those grounds.

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  7. Aldo Montoya Tuesday, May 6, 2014

    Lawsuits are one of the few tools available to protect your IP. One of the problems with Judge Koh’s approach is that she only allows a few patents in each trial. Juries are not seeing the wholesale theft being committed by Samsung.

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  8. These lawsuits are less about the past than they are about the future. If Apple can influence Samsung’s strategy to have some degree of product differentiation, that is positive. At some point Apple will significantly shift the form and function of its phones and tablets and if they can cause Samsung to attempt some degree of original work, that should provide Apple an advantage.

    Further, Apple has influenced some consumers to look at Samsung’s products as copies. For some people cheap knock-offs or fakes are OK, however, the consumer that Apple targets is less likely to believe so. While not a scientific sample, over the past 12 months I have witnessed friends who were likely neutral to Samsung as a brand several years ago now willfully avoid TVs and refrigerators because of their brand perception.

    Historically, the ‘fast follower’ or ‘copy cat’ strategy was successful . . . Apple and Samsung may be working toward an exception to that rule. We all will see eventually.

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    1. Henry 3 Dogg Wednesday, May 7, 2014

      And it’s very noticeable that Samsung’s current phones look a lot less like iPhone than their original phones.

      And that is enough to have made it worth Apple’s while

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  9. Judging by the comments, the author is completely correct, these legal games are only for the lawyers and the obvious fan boys, of which Apple seems to have quite a few.

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    1. Actually, you are not correct. Cathy’s comment, and I’ll post my own here in dissent of the author, disagrees with Roberts. Roberts is clearly anti-patent, and anyone who is anti-patent is anti-innovation, and therefore anti-American.

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    2. Henry 3 Dogg Wednesday, May 7, 2014

      And Samsung also has quite a few, though many of the Samsung ones are paid trolls.

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  10. George Wedding Tuesday, May 6, 2014

    This trial was not pointless. It was just one in a series of skirmishes in a patent war that still is being played out.

    For its part, Apple is not trying to exploit the patent system — and to suggest otherwise is the market of a biased reporter. Rather, Apple simply is doing what any responsible company must do — defend its patents when they are infringed or risk losing them altogether. Good or bad, this is the patent system every business operates under until the laws are changed.

    And in case the author missed it, Vanity Fair just published a lengthy and better researched story with the facts behind Samsung’s long history of patent abuse around the globe and pattern of unethical business practices.

    Both Apple and Samsung are jockeying for position and hoping for a knock-out legal blow, but Samsung clearly is in the wrong the here and always loses these fights. In the end, the company will settle because that is part of its business plan — after it builds market share along the way.

    Gradually, Apple is winning a warm of attrition and public opinion, and that may matter more in the long run. Samsung is not thought of as an innovator. And now we know that Google indemnified Android licensees against losses in patent cases brought by Apple. It’s obvious why Google did this — it copied many elements of iOS and descried to play the same ethical game that Samsung has long played — steal technology innovations today to catch up with better competitors and pay for them tomorrow (after you save your company from ruin and gain the market share you need to survive).

    My only question is why the courts let thieves get away with this? I think the answer is that Samsung is taking advantage of Korea’s key position as ground zero in the long term fight against communism. The company believes the American government is not going to do anything to weaken the central, economic engine of a key military ally.

    Samsung is despicable and Americans should not be buying Samsung consumer products.

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