Apple’s patent victory is a victory for competition

Published : 29 August 2012, 02:46 PM
Updated : 29 August 2012, 02:46 PM

Apple's resounding patent victory over Samsung in a California courtroom last Friday is a blow to the competition, which now won't be able copy Apple's technology. But it is a win for competition. It will force everyone to think harder about turning the unimaginable into the normal.

And that's what technology innovation is all about.

I am all for intellectual property (it's how writers make a living) and no particular fan of software patents, which can be vague and overly broad. It's a very tangled area of IP that in the modern-day tech industry has been a life-support system (think Kodak) and a means of protecting oneself against patent trolls (like that guy who tried to sue the World Wide Web). Patent troves, in the astute description of technologist Andy Baio, have also been weaponized in perverted campaigns to stifle innovation.

Apple and Samsung are duking it out all over the world — some 50 lawsuits in about 10 countries, by one reckoning — in a sort of forever war. Samsung got a favorable ruling just days before in a South Korean court. But the marquee case was the one in San Jose, California, where a jury found that Samsung had violated six of the seven patents Apple sought to defend – three software and three design – and awarded the company $1.05 billion.

The conventional wisdom is that a victory like this for a company like Apple is bad for consumers because it gives a virtual monopoly even more marketplace power.

Dan Gimor, director of the Knight Center for Digital Media Entrepreneurship at Arizona State University's Walter Cronkite School of Journalism and Mass Communication — and nobody's fool — presents this case as clearly as I have seen:

…e're likely to see a ban on many mobile devices from Samsung and other manufacturers in the wake of this case, as an emboldened Apple tries to create an unprecedented monopoly. If so, the ultimate loser will be competition in the technology marketplace, with even more power accruing to a company that already has too much.

Leave aside the California jury's wisdom or the possibility the outcome will be reversed on appeal. Leave aside how you feel about the iPhone. Leave aside how you feel about Apple, whose Microsoft-like imperiousness was more charming when it was a minor underdog and not bigger than Microsoft. Leave aside how much Apple's deep hatred of Google related to Android, the market-leading mobile operating system that powers Samsung and many other phones, may be driving this blood feud.

We tech consumers are interested in price, and in the near term, tablets and smartphones could be more expensive because of license fees and the huge cost of patent litigation added to the cost of the electronics we buy. And there may also be less choice for a while.

But we have a deeper vested interest in the leveling power that comes from true competition, even if it costs a little more to get there. It's not about rewarding the originator of an idea. It's about challenging everyone else to come up with a better one. We should be for things that punish technological complacency and that protect conditions for innovation, not take a rooting interest in which companies are winning and which are losing (Pandodaily's Farhad Manjoo makes a great case that copying paid off handsomely for Samsung — revenue of about $25 million from the infringing handsets, versus a cost of litigation of about $3 billion).

Extending the status quo — as in making more phones like iPhones — may have made things cheaper, but it wasn't going to inspire innovation or cultivate the Next Great Thing. It's the difference between competing in the marketplace and competing in the marketplace of ideas: There's a narrow advantage to us in the former and an incalculable one in the latter.

Take a look at one of the patents Apple successfully defended. Apple's strict enforcement of "bounce-back scroll" — which alerts you to the "bottom" of a "page" by snapping it back to fill the screen — would mean that Android phones can't have it. Owners of anything but an iPhone would be denied a very obvious and very handy feature — without feedback, you might just think that the page has stopped loading, which happens quite a lot. This sort of animation adds character and makes a smartphone more intuitive. It's not a killer app but, like power steering, maybe should be on every car once it's invented.

It came into being because some smart person or team thought it up to address a user interface shortcoming that nobody else had given much attention to, or that hadn't been solved as well. Apple took a chance on it (and dozens of other big and little original ideas) and struck gold with the iPhone and its operating system.

Whether or not you believe Apple should even be in a position to own it is irrelevant. By borrowing so heavily, Apple's competitors aren't on the road to inventing anything that could change everything. They aren't competing. They're just offering modestly differentiated alternatives of an idea of a smartphone that has already caught on.

Competitors need to identify flaws the other guy hasn't and boldly pursue solutions. Apple does this, not so much by inventing but by reimagining: There were music players before the iPod, desktop computers before the iMac, smartphones before the iPhone, tablets before the iPad. But they all had missing ingredients Apple didn't pluck off someone else's shelf.

So powerful is Apple's reputation for radically improving on things that have been tried that we are pining to see what its vision for a TV set might be (in an era when the best TV set you have is your smartphone or tablet), and ponder how it would have designed a car.

Where is Apple's competition?

The irony is that Samsung has already come up with a suitable alternative to bounce-back scroll, the New York Times reports: a blue glow when you reach the bottom of a page. Sounds cool. Maybe even cooler.

Even more ironic: Patents complicate progress but are more like annoying speed bumps than insurmountable walls. "In this industry, patents are not a clean weapon to stop others," Silicon Valley consultant and former IBM IP Strategy VP Kevin G. Rivette told the Times. "The technology, like water, will find its way around impediments."

Sterne Agee analyst Shaw Wu also argues as much. In telling Reuters that the entire Android universe may now have to consider "doing something different", Wu is postulating that there always is something different to do.

What's good for a competitor isn't necessarily what's good for competition. Necessity, the old saying goes, is the mother of invention. Competition slows when competitors sample, when they rely too heavily on the breakthroughs of others.

It's no accident that every smartphone now looks a lot like the iPhone (and none did before the iPhone). But it is a crying shame. Invent something, already.

John C. Abell is a columnist for Reuters.