If Apple Wins We All Lose

Yesterday's news that courts had ruled against HTC in favour of Apple was a tidy little victory for Apple. But HTC is just an initial skirmish in a much larger fight. The real war is against Android, and if Apple wins that, we'll all lose.

The iPhone was like nothing that came before. And Apple should be able to protect its innovations and intellectual property. But the Cupertino Crew doesn't just want to do that; it wants to kill Android. It wants Google's mobile OS to go away. No settlements. No licenses. Dead. Jobs said as much, very explicitly.

There are two avenues Apple can take to achieve this victory: the marketplace and the courts. I'd be all for Apple winning fair and square in the marketplace. It's OK for consumers to decide the victor in this fight. But it's not OK for a handful of judges and lawyers to dictate the direction of technology.

For Apple to win in the marketplace — and I mean total dominance here, the kind of thermonuclear war that an apoplectic Jobs described in Walter Isaacson's biography — it would require both innovation on a massive scale, and real price competitiveness.

Realistically, that's not going to happen. It's already impossible, at least in the next three years. Android's foothold with consumers is already too strong. Its phones are too inexpensive, and Google and its device manufacturing partners are too committed to Android for it to fail completely.

So that leaves the courts, where Apple keeps pressing its case — largely against device manufacturers. That's not OK. The patent system is broken. Deeply, and profoundly so. The system that was created to foster and protect innovation, now serves to strangle it dead. Apple has real innovation. And real invention. So why act like a cheap patent troll, taking advantage of a body of under-qualified legal professionals to make decisions about which technologies consumers will be able to use? Does that bother anyone else?

Granted, the iPhone was a sea change. So was the iPad. And Apple ought to be able to protect the innovations and intellectual property that set those devices apart. If Apple was only competing on iron-clad patents — if it was just forcing its competitors to think way out side of the box, that would be great for innovation. But it's not. Apple is playing the same stupid games everyone does in the patent wars today.

A little bit about patents: For something to be patentable, it must be (or at least it should be) novel and non-obvious. You should not be able to find existing examples of it in prior art — in other words, when you look at the history of similar products, whatever you're patenting needs to be unique.

Now, certainly, some of Apple's good stuff is novel. No one had ever seen anything like the iPhone prior to 2007. Yet clearly some of the things Apple is gunning to protect are, well, obvious.

What Apple won the rights to in the HTC case, was a patent on the act of recognising patterns and acting on them — like when you tap on a phone number in an email to launch your dialer and make a call.

Thing is, Google was recognising numerical strings (including phone numbers) and tailoring search results to them long before the iPhone came out. Dating back to at least 2006 (maybe earlier) you could enter a UPS tracking code into Google, and it would parse that number, ping UPS and return tracking information at the top of the search results. It would do the same thing with phone numbers. It basically did everything the iPhone did, short of make calls.

Was it non-obvious for a mobile phone to do what a search engine was doing? I don't know. I certainly think it's debatable, yet this is the issue that Apple just beat HTC on.

Likewise, the iPad also had many novel features — like that genius subtle backside curve that makes the device so easy to pick up off a flat surface. But if you look at what Apple wants to get Samsung to drop — the bezel and the rounded corners and the rectangular shape and even the colour — it's clear that Apple wants Samsung to try to make something that goes against good design principles established well before Apple rolled out the iPad.

I think a lot of this can be blamed on Apple's past history. It lost big in the courts once before. And it's determined not to do so again. In some ways, Apple is becoming the George Wallace of technology companies.

In 1958 George Wallace lost the Democratic gubernatorial primary in Alabama to his opponent John Patterson, who campaigned on a more virulently racist pro-segregation platform than Wallace had. In response, Wallace said he'd never be out-segged again. Nor was he. In 1962, Wallace stormed into the Governor's office and national stage on a campaign of "segregation now, segregation tomorrow, segregation forever."

Apple's Wallace moment came in 1994, when it lost a massive legal battle after the courts ruled that it could not prevent Microsoft and HP from shipping computers with graphical user interfaces that used the desktop metaphor. Apple argued that its copyrights were being violated, but the court decided Apple's copyrights weren't afforded patent-like protections

(Of course, it didn't help that Apple wasn't the first company to ship a computer with a graphical user interface, mouse and a desktop metaphor. That was Xerox, which had all that on its Alto. In fact, the original plan for the Macintosh business unit was written surreptitiously on a Xerox Alto during off-hours at Xerox PARC. So it goes.)

But something changed in between the time the Macintosh was released in 1984 and when the iPhone rolled out in 2007: software patents. They weren't widely applied until the 1990s. This happened to co-incide quite nicely with Steve Jobs' return to Apple. And by the end of the first decade of the twenty-first century, it was game on.

And so, in 2007, when Steve Jobs announced the iPhone, after scoring big points with the crowd on the iPhone's features, he did a little endzone dance for the competition, crowing that the company had patented the Bejesus out of its fancy new phone. It had learned its lesson in fighting Microsoft on copyright rather than patents, and was clearly determined to out-patent anyone else in the then-nascent smartphone market.

Now we're seeing the fruits of those patents. They've afforded Apple some significant victories. But if you look at the past as prologue, as Apple seems to be doing, I don't think it's so clear that it would ultimately be good for Apple to kill Android in the courts. And it certainly won't help consumers.

Try this thought experiment: Imagine Apple had been successful in its suit against Microsoft. Imagine Microsoft had been prohibited from shipping Windows 2.0 or Windows 3.0 — or, by God, Windows 95 — without licensing the hell out of it from Apple. Where would we be?

Without Windows there to pressure Apple to Build Something Better, things would be very different in Cupertino today. After it lost its case with Microsoft and saw its market share dwindle to nothing, Apple had to innovate like crazy.

Had Apple won, it never would have had to transition from the System 7-era to Mac OS X. It never would have had to buy NeXT. It never would have had to bring prodigal son Steve Jobs back into the fold. Without Mac OS X, there would be no iOS. And without iOS, no iPhone, no iPad.

George Wallace used segregation as a bludgeon, quite effectively, to win elections. But today, it's clear that he ultimately injured himself, Alabama, and the nation as a whole for very many years to come.

I'm all for seeing Apple defend its intellectual property. But Android is a healthy force in the marketplace. If Apple can destroy it there, more power to Tim Cook and company. But if Apple beats Android in the courts rather than the marketplace — if it out-segs Google instead of out-innovating it — that may be great for Apple, but it will be bad for society, bad for technology, and ultimately bad for Apple.

And of course, the great irony is that so much of the amazing innovation that Apple pulled off over the past three decades can be traced back to its willingness to swipe ideas from Xerox. Steve jobs was fond of quoting Picasso, saying "good artists copy, great artists steal." If Apple does succeed in crushing Android in the courts, where will it get its next great idea? My guess is that it won't come from a lawyer.



    I'm sorry but it's not for a Gizmodo writer to say what's fair in patent law, that's a job for the courts.
    It may look like dirty tricks, but have you seen the Samsung Smart Case? That my friends, is what dirty tricks look like.

      Really? http://johncblandii.com/2011/08/the-smart-cover-another-apple-non-innovation.html
      It looks to me like Apple are trying to sue Samsung for an idea they stole themselves on a case that Samsusng never sold.

      It's also worth mentioning that my old pre-iphone and pre-android Symbian Series 40 Nokia phone parsed text for phone numbers, dates and times.

      I think we are heading into the leagal harassment territory that could bring the DoJ charging in for anti-competitive behavior. One can hope anyway.

      I thought it was a really fairly written artical, Mat didn't attack Apple saying it was dirty tricks, He's just saying that he'd prefer Apple innovated rather than litigated to beat Android.

      The only people wining out of this so far are the courts and lawyers.

      It's an opinion piece/article. Get over it.

      It is a very well written, objective, opinion piece at that; citing multiple references to non-Apple events in history etc

      "I’m all for seeing Apple defend its intellectual property. But Android is a healthy force in the marketplace. If Apple can destroy it there, more power to Tim Cook and company. But if Apple beats Android in the courts rather than the marketplace — if it out-segs Google instead of out-innovating it — that may be great for Apple, but it will be bad for society, bad for technology, and ultimately bad for Apple."

      I must've missed the bit where Mat made a judgment and slammed a gavel, Gray.

      Sounded to me like an opinion. I could say it's also not up to Gizmodo readers to pass judgement on things.

      I disagree. The patent system will never improve if we don't complain about it.

      I agree Gray, how could anyone outside of the court system have any opinion about patent laws, let alone the nerve to voice those opinions. I say back to law school giz, then you can have your say. FREEDOM OF SPEECH FOR ALL (provided of course you have the proper education)

    I think its fair to say that Gizmodo is a Tech Blog, and they've the right to an opinion, just as everyone else can make comments to the same effect.

    Regarding the Behemoth Apple is, they might win the odd battle, but they will not win the war. Apple needs people to buy their products, and its interesting to see that they're market share is falling away since the Patent wars began.

    Regardless, Google have yet to show all of their cards. I would suggest if Google wants to push back, Apple will have to start developing their own way to transmit over GSM/3G etc, because Motorolla owns the patent to that one. Apple can then go back to sellng iPods because other than hauling their competition into court, that's really all they're good at.

      haha apple will just develop their own closed standard transmission network where you can only make and receive calls from apple devices, at least you will have hundreds of millions of other ifags to facetime with

    If android was full of original innovation why are HTC, Motorola + others paying Microsoft for royalties for their Android phones. Eric Schmidt was in Apple's board when iPhone was conceived, announced and launched . . and then Google goes on to announce Android . .What is Apple meant to do . .give them grants and develop android further for google . . you must be kidding . . All that Apple wants to do is, hey we were sleeping when microsoft stole off us, lets be vigilant this time around . . .

      To be honest, I don't see how Android infringes on Apple's iOS. The similarities come in at "They make phones do more than make calls" and that's just about it.

      Apple has focused on simplicity, ease of use and a modular design with strict controls on the apps to make sure they fit with their business model. This is a pretty good strategy, and its worked very well for them.

      Google's Android is catering for people who want more customisation. Its about letting the market dictate the direction of technology.

      They're two very different products, and what Mat is arguing is that the patent system was designed to encourage innovation and stimulate long run economic growth while improving quality of life for consumers. The legal cases which Apple are winning are going against the original intention of the law, by strangling innovation.

        ...and if Apple was so purely innovative, why are they paying royalties to Nokia and required to pay frand royalties to Samsung...? Innovation does require competition to push you on to the next big thing.

          Thats called Licencing. You pay some one to use his technology (if he would let you). Same as HTC, Motorola et all paying Miscrosoft for using MS's stuff which have been borrowed in Android.

      Companies are getting sued/paying royalties because software patents are often so vaguely worded that you can apply them to anything.

      Take the '647 patent that's in the Apple V HTC case, it involves words like 'such as'. How do you have an idea if you haven't even defined it yet. It boils down to 'finding patterns from unstructured text'... And I'm sure regex was doing that years before...

      mmmmm perhaps just a little bit of research and you wouldn't say that.


      Android was conceived WELL before the iPhone

    good read

      Yes.. and what's crazy is it that it came from the USA Gizmodo :) hehehhehe.. they should frame this one. :)

    Not picking sides but how ironic that Apple invites MS to write for Mac and MS steels the entire OS. Now Apple invites Google to put their software on iPhone and Google does the same. I wonder if Steve knew he was about to get bent over again.

    I agree with the article, as much as I love Apple I would prefer they let other manufacturers build their products because the more they compete the more better stuff we get, if Apple wins this then they have no one to compete with and we may not get anything better than the technology we have now.

      Why can't people develop their own original work rather than steeling. Microsoft is doing Winmo, have been doing it before any other smart phone ever came ( HP iPAQ, O2 XDA), Palm had their original work, Nokia had theirs,RIM have theirs . .Even Samsung had their own (I think they still do BADA) . . Why can't they all improve their original work to good quality...Android has basically borrowed stuff from every one legally + illegally. And is now crowing FOUL . . . about time . .

        To quote Steve Jobs who quoted Picaso, “good artists copy, great artists steal.” . As it states in the article:

        "(Of course, it didn’t help that Apple wasn’t the first company to ship a computer with a graphical user interface, mouse and a desktop metaphor. That was Xerox, which had all that on its Alto. In fact, the original plan for the Macintosh business unit was written surreptitiously on a Xerox Alto during off-hours at Xerox PARC. So it goes.)"

        You read it here, Now stop complaining about everyone stealing apples 'original' ideas and innovations.

    Remember, that Apple applied for the patent way back in 1996 and had it granted in 1999 (this was even mentioned in another gizmodo article linked to in this one.)

    Something from the article caught my attention - "No one had ever seen anything like the iPhone prior to 2007". Actually, that's not true at all. At least a couple of years before that I saw Jack Bauer and his associates using PDA phones in the TV drama 24. That prompted me to go looking and companies like HTC and Dopod (now majority owned by HTC) were producing smartphones long before iPhone appeared. All Apple did was swap the precision of a stylus for fat, greasy fingers and trim the size down a little. And that's not even taking Blackberry into consideration.

    Apple's magic was to launch the iPhone at the perfect time to take advantage of new hardware and to market the bejeesus out of it. AFAIK, you can't patent timing or marketing, so I don't see that Apple have any real claims to any of it. That's probably why they engage in this petty tit-for-tat.

      "All Apple did was swap the precision of a stylus for fat, greasy fingers"

      You say the most ridiculous shit.

        Yeah, that's why there is no such thing as a stylus for iPhone, right? Oh, wait a minute... there is a HUGE market for stylii for touchscreen phones.
        I watch my mate use his Clie with a stylus and wonder what idiot ever thought using your fingers was a better idea. Fingers are fine for making calls but a stylus is so much better for most of the other stuff people do on their smartphones. If someone made a smartphone with a stylus you could store on the phone, I'd be very, very interested.

          You do have a selection of Android tablets + Phones made for Stylus. Telstra touch TAB, Optus TAB.. Resistive touch screen ones. They are good for writing. Not for any other purpose. If you really want to write with a stylus on a capacitative touch screen . . google "adonit jot/jot pro" and get the stylus. Provided you have a good app, you do some good writing.

          FYI: There were phones which did almost everything a modern smart phone does. Think of the days of iPAQ, O2 XDA . . Even a nokia 6120, could surf the web, tether, had 2 cameras, had email, media player, you could by apps online, you could also have video chat . .all at least 2 yrs before the iPhone ever came on the horizon . . Uniqueness of iPhone was never its features. Its the implementation. Original iPhone - Not even 3G capable. iPhone to date can't make video calls. Never had the top mega-pixel in camera. Was not multi-tasking until recently . .No iPhone had ever comparable specs than the top model of its lifetime. however a granny could use it for a lot of tasks much easier than the iPAQ which nearly had the same features. . .

    How can you say everyone else should be able to copy apple in one breath, and then say apple woudln't be where it is today if it hadn't been forced to innovate?

    Lets not forget Google steal other people's ideas and then give them away for free to get advertising revenue in return.

    Windows phones innovate, is it too much to ask other brands do the same?

      You've never used an Android phone in your life, have you? Save a few OBVIOUS similarities (icons in grid pattern, which smartphones have had for years), they're very different beasts.

      Capacitive screen technology was not developed by Apple..... It was invented by E.A. Johnson at the Royal Radar Establishment, Malvern, UK, around 1965 - 1967

        Invented and Developed are two very different words...

    So when is the US government bringing the Anti Trust hammer down on Apple?

    @Mat Honan:
    You are a douche. Are you able to determine the outcome of multiple alternate realities? If Apples' suits against M$ had been successful maybe the M$ OS could have been vastly different. Maybe their OS could have been so different, that Gates and his goons may have inadvertently created an iPhone'esque device through natural innovation. Where would we be today if M$ created the "iPhone" 10 years earlier than Apple??
    As of right now there are thousands of companies just living off of Apples creations. Imagine if they all got off their arses and started creating their own gear?

      And Apple lived off Xerox's creation.. so what you're saying is that all these thousands of companies are, by proxy, living off Xerox.

      Good point.

    "It’s OK for consumers to decide the victor in this fight. But it’s not OK for a handful of judges and lawyers to dictate the direction of technology."

    Huuug, quite a ridiculous statement. Since when consumers decide who own IP.Android phones are what they are now thanks to Apple spending in R&D.

    I wouldn't be too worried about all this. It reminds me of Sony and Betamax vs JVC's VHS.
    Even though betamax was better quality, because of open rights, the VHS won out in the long run.

    I believe it's the same thing happening here and Apple knows it.

    It really looks like the US legal system is also broken. That you need a patent to protect what is just a copyright!

    Apple. Can. Die. In. A. Fire

      Potatoes. Can. Cook. In. A. Pot.

        Bears. Can. Shit. In. The. Woods.

    At the end of the day I am all for innovation. Apple innovated and continues to do so, but all I see is Android copying. MS have come up with their own solution, kudos to them but Android releases a poorly run ecosystem with no real guidelines for innovation of their products. If Android and phone manufacturers sat down and came up with an original ideas and innovation, then I would fully support them. But nothing annoys me more than a copycat. I see no diffence between Android and HTC/Samsung and the Chinese knockoffs of Apple products. Shame on Android and HTC/Samsung. Get an original phone design and operating system will you!!

      I've used both iOS and an HTC DHD using Android Froyo (then Gingerbread) and I honestly cannot understand how people can think they are similar.

      iOS is about simplicity, every iDevice you pick up is the same, save the wallpaper and the ringtone.

      Android is about customisation. I've yet to pick up an Android phone belonging to a friend that's been similar to mine. Between custom ROMs, launchers, widgets etc they're all different.

      YES, fundementally they're the same (touch screens, size/shape) but really, how different do you Apple fanboys want other phones to be?

      If Apple had their way Samsung would be trying to sell circular tablets that you have to smash with your face because iPad are rectangular with touch screens designed for fingers.

        "YES, fundementally they’re the same (touch screens, size/shape) but really, how different do you Apple fanboys want other phones to be?"

        WP7-tier different would be great.

          Does WP7 recgonise numerical strings? I'd be surprised if it didn't.

            I'd also be surprised if Apple and Microsoft didn't already have an agreement in place for such functionality that indemifies OEMs.

            Of course it does, as do most "feature" phones built this century. I can't remember ever having a phone that couldn't identify a phone number in an SMS, although the NEC I got in 1998 probably didn't.

        Also, to clarify, I'm not saying that Android's customisation is better than the simplicity provided by iOS. I personally prefer the ability to customise but that isn't for everyone.

        I also do agree that innovation is key. What I don't agree with is the competition squashing tactics Apple are employing.

        However much people in favour of Apple would like this to be just about forcing innovation, Jobs plainly stated that he views Android as competition and wants them to disappear.

    "The real war is against Android, and if Apple wins that, we’ll all lose."

    Does anyone honestly think this is going to happen? I mean... really?

    I'm all for opinion pieces but this is kind of ridiculous. It reads like a spur-of-the-moment rant more than anything else.

      I think it's fair, I've worked with 2 people who have WP7 phones, compared to 5-6 people with iPhones and a comparable people of Androids. When the people with WP7 number about as many as dumbphones, in the electronics retail business, it's not a fair fight.

    "Try this thought experiment: Imagine Apple had been successful in its suit against Microsoft. Imagine Microsoft had been prohibited from shipping Windows 2.0 or Windows 3.0 — or, by God, Windows 95 — without licensing the hell out of it from Apple. Where would we be?"

    Microsoft had a valid licence for the interface elements Apple was suing over. It had licensed them for Windows 1.0, and a clause in the licence allowed it to be extended for "future revisions of Windows". That was why Apple lost.

    Try this thought experiment: do some research.

      This is one of my absolute favourite tech stories; MS licences all this stuff for Windows 1 and 20 years later here comes Windows 8 - still with the same licence I assume. I believe (not 100% sure) that Apple succesfully managed to keep the reference to 'trash' with a bin icon, which MS called 'recycle bin', just awesome. Not sure what they had in Windows 3.1, maybe deleted files just got deleted?

    Speaking of which, I saw Apple Data Detectors — the software at the core of the HTC case — demonstrated in 1996 and had an early version of the tech running on my Mac in 1997. Google hadn't been founded yet.

    Yes, this is an opinion piece and you're entitled to your opinion. But if your opinion is based on misapprehensions and poorly-researched "facts" it needs revision.

      Here's a link. http://www.miramontes.com/writing/add-cacm/

      I like the look of it, but it's way beyond what I think they won the decision for - it creates a whole menu based on what it finds in selected text.

      For the situation of just turning an email/web address/phone number into a clickable link I'd be really surprised if there wasn't prior art.

    I think its more then fair to express the opinion that it'd be a shame if Apple destroys Android especially when expressed as fairly as possible. Well done!

    Other also have the right to disagree however, looking at the comments, too many people seemingly base their opinion on what there favorite gadget is!

    Apple fanboys angry over perceived threat by allegedly stolen operating system that behaves little like IOS. Android fans finally have a decent article on Gizmodo, generally for the wild west of the tech market. WinPho7 users cautiously optimistic. All is right with the world.

    Another reason to add to my list for hating Apple. Stop sueing and start innovating Apple!

    This as an extremely interesting and intelligent article. To disagree with its main point you'd simply have to have absolutely NO understanding of any of the issues at hand and probably shouldn't be commenting on tech articles in the first place.

    The lightbulb was invented to replace the candle, seems fairly obvious right, both are a source of light? The problem is, though both the same, it actually took a lot of time, effort and a few smart ideas to produce it... Should we say something like the lightbulb cannot be patented because it seems obvious to us?

    Sure Google could recognise numerical strings, but a search engine is not a phone. It seems like an obvious feature now, but the problem is when it was released that was not the case.

    Companies should be able to protect their investments and inventions.

      That's not a really good analogy though.. the light bulb may be the next logical step from a candle or more precisely a lantern.. but it is not necessarily the most obvious next step. The most obvious next step would be a more efficient candle or lantern.. creating a light bulb is innovative/inventive, making a more efficient lantern is also innovative/inventive.. but should the new lantern use technology based on the last version of the lantern, then it is no longer a non-inherited creation. The light bulb was a completely new, never before used piece of technology.. it used electricity to create light, not combustion.

      When we take a look at some of the tech that people claim Apple "invented" we need to look at how much of that is truly non-inherited technology, that has not been built upon preceding technology.

      What needs to happen is a new patent law system. One where genuinely "new" things are given patents and everything else is given a sub-patent of that technology.

      You obviously haven't understood this article at all. Even you example is very silly. Do you know how MANY different people all cam up with the lightbulb at the same time and how amazingly disputed an invention that was? Even today it is still wrongly attributed to Edison.
      The whole thing was only settled in the end by dodgy financial agreements, but it took decades.

        it's still not settled if the earth is spherical or for that matter if earth is not in the middle of the solar system

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