Apple(s aapl) 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.