The Smartphone Wars: The Limits of Lawfare
<p>It&#8217;s beginning to look like Apple&#8217;s legal offensive against Android might backfire on it big-time.  Comes the news that Judge Koh has <a href="http://www.bloomberg.com/news/2012-08-17/apple-loses-bid-to-bar-evidence-in-samsung-patent-trial.html">declined to suppress evidence</a> that Apple may have copied crucial elements of the iPad design from prototypes developed by Knight-Ridder and the University of Missouri in the mid-1990s.</p>
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<p>Those of us aware enough of computing history to be aware of early work by XEROX PARC and others have always been aware that Apple&#8217;s claims of originality were highly dubious.  Apple&#8217;s history is one of adroit marketing and a facility for <s>stealing</s> adapting ideas from others, wrapping them in admittedly excellent industrial design, and then pretending that all of it originated de novo from the Cupertino campus.  </p>
<p>The pretense has always galled a little, especially when Apple&#8217;s marketing created a myth that, footling technical details aside, the whole package somehow sprang like Athena from Steve Jobs&#8217;s forehead.  But it didn&#8217;t become intolerable until Apple began using lawfare to suppress its competition. </p>
<p>The trouble with this is that there&#8217;s actually a <em>lot</em> of prior art out there.  I myself saw and handled a Sharp tablet anticipating important iPhone/iPad design tropes two years before the uPhone launch, back in 2005; the Danger hiptop (aka T-Mobile Sidekick) anticipated the iPhone&#8217;s leveraging of what we&#8217;d now call &#8220;cloud services&#8221; in 2002-2003; and of course there&#8217;s the the Sony design study from 2006, <a href="http://esr.ibiblio.org/?p=4479#more-4479">described by one of Apple&#8217;s own designers</a> as an important influence.</p>
<p>If only Apple were honest about what it owed others&#8230;but that cannot be, because the company&#8217;s strategy has come to depend on using junk patents in attempts to lock competitors out of its markets. </p>
<p>On one level this is understandable. The iPhone&#8217;s global market share has been plummeting &#8211; <a href="http://money.cnn.com/2012/08/08/technology/smartphone-market-share/index.html">hammered</a> nearly everywhere but the U.S. by Android, and apparently <a href="http://betanews.com/2012/06/05/iphone-market-share-heavily-depends-on-carrier-subsidies/">sustained in the U.S. only by carrier subsidies</a> that at least one carrier (AT&#038;T) has <a href="http://www.bgr.com/2012/08/01/att-iphone-sales-decrease-managers-orders/">has wearied of paying</a>.  The Google Nexus 7 has recently taken off fast enough to pose a real threat to the iPad&#8217;s tablet dominance, and that problem will only become worse as other Android vendors meet or exceed the price-performance benchmark that it sets.</p>
<p>But lawfare is a brittle counter-strategy. Patents are more effective as threats than if you have to invoke them in court. In the presence of prior art, every patent lawsuit carries a risk that your weapon will blow up in your face.  This happened to Oracle in its attempt to extract rent from Android; their case was found to be sufficiently without merit that the main argument left in play is now over how much of Google&#8217;s legal fees they&#8217;ll have to reimburse.  </p>
<p>Apple may well be headed for a similar bruising &#8211; the fact that an <a href="http://universal-machine.blogspot.com/2012/03/did-roger-fidler-invent-ipad-in-1994.html">amiable-looking professor</a> is going to be able to show the jury two-decade-old mockups that remarkably resemble an iPad is certainly not a good sign for them.</p>
<p>The underlying problem, of course, is that the U.S. patent system is hideously broken. Despite some recent signs of sanity (in re Bilski) it is still far too easy for well-lawyered-up companies to cartelize markets, stifling innovation and suppressing consumer choice.  It&#8217;s too much to hope that this will be fixed soon, but if Apple&#8217;s junk &#8220;design patents&#8221; are taken away from it, at least one great wrong perpetrated on Alan Kay and Doug Engelbart and the other pioneers who actually invented the &#8220;Apple Interface&#8221; will have been partly righted.</p>
