Inherit the screen

The Apple v. Samsung trial is no more solely about innovation than “Inherit the Wind” was solely about evolution. Both stories – and, the trial is weaving quite a story – involve the attempt to bring facts to bear on a theological position ingrained in culture, but have a much wider implication.

In “Inherit the Wind”, the setting is a fictionalized version of the trial of the 20th Century – The State of Tennessee v. John Thomas Scopes. The core issue is retained: a discussion of the teaching of evolution versus creation in public schools. For authenticity and drama, the story draws heavily on actual transcripts of legal arguments made during the trial, some of the most colorful dialog in history from two of the great orators of the time, William Jennings Bryan and Clarence Darrow.

But the backstory of “Inherit the Wind” revolves around the troubled times of McCarthyism and the assault on free speech in the name of preventing the spread of communism. That context is slowly being lost as generations pass, and distant memories of a past where blacklists existed fade into history. Without weighing in on which side was right, my only point is: the story wasn’t about what it appears to be about to the casual viewer.

Neither is the Apple v. Samsung trial, and that’s important to understand if you’re working in high tech.

First, there’s a lot of humor in searching for jurors in the Bay Area who don’t own an iOS or Android device, and don’t have a patent, or haven’t heard of open source. I couldn’t resist this one. The whole concept of “trial by a jury of peers” doesn’t hold any water, and in fact couldn’t be farther from the truth. They’re looking for people in the tech capital of the world to judge on a highly technical set of issues with a modicum of technical literacy.

Second, as with any trial, the judge is making a valiant attempt to restrict the scope of the jury’s consideration to only the points of law involved. There’s a great article on the instructions which were provided to the jury. At issue are seven Apple patents and four Samsung patents. Infringement is one thing, but both sides are claiming that some the patents are invalid, and therefore unapplicable. Read that again: we are discussing if one or more patents, granted by the USPTO, are invalid. That could throw the whole first-to-file patent system under the bus. Apple has been aggressively patenting concepts right down to the basics of a user interface (and this patent isn’t in this case).

Third, there’s a great deal of theology bordering on religion at stake here. The whole idea of Apple being cooler-than-thou is the point of debate on what Judge Koh has called trade dress, and whether Samsung is “diluting” it with similar features. Apple CEO Tim Cook sees it as a birthright, from his comments at AllThingsD:

From our point of view, it’s important that Apple not be the developer for the world. We can’t take all of our energy and all of our care and finish the painting, then have someone else put their name on it.

But it’s just not that simple. As this article from the Wall Street Journal succinctly states, a phone or tablet has certain form and function, and that means devices often look alike because they have to fit in a hand and work a certain way. Just as Apple didn’t invent the iPhone “out of thin air” as one patent expert put it, Samsung is relying on innovations that already existed and looking at competitive products to produce a competitive product.

Back to the “jury of peers” nonsense, the average reasonable person on the street may not be able to distinguish one trade dress from another. Ina Fried has a great piece with a report that some Best Buy consumers actually bought Samsung Galaxy Tabs thinking they were iPads, but brought them back upon learning they were uncool. Thus the new round of Apple genius commercials, targeted at the tech challenged.

The counter example to this may be one of the more interesting developments from this whole trial. Could this be the reason for the radical departure by Microsoft in Windows Phone using the “tiles” interface, and the reason Nokia has avoided Android and gone all in on WP? This trial is Apple focusing the beam on Samsung as the lead proxy for the Android community, and if they can prove their points, others will be affected by association. This could also be part of the holdup in the attempted rebirth of RIM as a BlackBerry 10 based strategy. Intellectual property may ultimately prove to be much more important than innovation or technology, which would be sad because every engineer will have to reevaluate if their design is based on something.

Which brings us to the last point: what’s at stake in the marketplace. The Samsung Galaxy SIII is a beautiful device with a solid marketing campaign built around a pretty cool Wi-Fi direct sharing feature, and it’s gaining ground while Apple waits to launch the long-awaited iPhone 5. Samsung had the largest quarter ever for a smartphone maker, shipping more than 50M devices in 2Q12. Various sources are reporting Samsung’s current share nearly doubling to between 32 and 34%, while Apple’s fell slightly to somewhere between 16 and 17%. The longer the iPhone 5 isn’t here, the more momentum Samsung builds. Add to that Samsung being Apple’s supplier of displays, and currently Apple’s supplier of processors, and Apple is looking for any leverage.

Attempts to settle this mess over a Starbucks have apparently failed, so now we’re left to watch this unfold. For a more detailed source of information, Groklaw is providing unfiltered coverage of the trial and related issues. For people working on the next round of innovation, including using Android in other embedded products, this trial will not only be entertaining but informative. The context of this trial may be lost for future generations, depending on which way things go.

That’s what I think, what do you think?

[Disclaimer: I don’t own any Apple or Samsung mobile device, yet. I do have a Samsung TV, and I’m an Android user. I’ve also never been called “cool”, at any point in life. I do believe that intellectual property should be reasonably protected, and hard working folks should be able to earn a living without looking over their shoulder constantly.]

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  • I’ve never believed that innovation should be impacted heavily by the courts, especially when those driving the outcome aren’t in the best position to make a truly qualified decision.

  • What did Apple invent? Icons, slide to unlock, rounded corners? Nope. All prior art. Seriously.
    Our patent system is seriously broken. Basically the USPTO approves almost any application, so that they can collect the fees. If they are invalid, the lawyers can fight it out in court. Obviousness and prior art are no longer bars to patents being issued.