 v. 
I’m not a lawyer, let alone a patent lawyer, and so anything I might say about the outcome of the Apple v. Samsung trial that concluded yesterday are the ramblings of a layman. I understand some of the basic principles of intellectual property law, and know trademarks and copyrights well enough to do my day job as a marketing professional, but I’m nothing near well-versed in patents.
However, something does strike me as wrong about the verdict that the jury laid down in this case. My general sense of wrongness comes from a few directions, and I thought I’d jot down some quick thoughts here.
First, I question the validity of some of Apple’s patents, based on whether or not they’re patents of mere ideas or patents of actual mechanisms created to bring those ideas into reality. Also, I question whether or not some of them shouldn’t be invalidated because of prior art—in some cases, it sure seems that way to me.
However, I’ve not studied the patents in question to the extent necessary to arrive at anything approaching certainty (and probably wouldn’t qualified to do so, anyways), and so I’ll leave it at this. I think the patent system is broken when it comes to software patents, and Apple v. Samsung highlights some of my concerns. Perhaps when I have more time I’ll try to flesh out my thoughts, and who knows what I’ll conclude when I’ve had an opportunity to do so.
Second, I have questions about whether or not Samsung actually infringed on some of the patents, even if they’ve valid, and in particular the design patents. I think that in some cases a loose similarity has been confused with substantial similarity. I consider it to be a bit like all of the boy bands that followed after New Kids on the Block (I might be wrong about the specifics here, but bear with me; I’m also not an expert on musical history). They certainly “copied” the sound and style of New Kids on the Block, but didn’t commit actual copyright infringement. They were, in essence, “copycats,” but only because they were following a popular trend.
So, did Samsung actually infringe on Apple’s intellectual property when it came to design, or did they simply follow Apple’s lead in creating a new kind of product, the modern smartphone? I think the mere fact of having been the leader in terms of defining this new class of product doesn’t necessarily constitute ownership, and so I question whether or not Samsung is guilty of anything here other than being a bit derivative and unoriginal.
Third, I seriously question the importance that have been assigned to the patents at hand, even if valid and even if infringed by Samsung. Was pinch-to-zoom or similar icons or a similar look and feel really the reason why Samsung has sold so many devices? Or was it the variety of products that Samsung designed (perhaps a bit ironically), or the price points they were able to hit, or the fact that Samsung has from the first blanked all of the available wireless carriers, particularly in the US?
In short, I think that the patents, even if valid and infringed, were not terribly important to Samsung’s success, and so should not have been given nearly the importance in this case. Certainly, not over $1billion worth, and not to the extent that injunctions should be put in place.
Fourth, and finally, I find it very hard to believe that the jury was qualified and/or equipped to adequately judge these matters, and also that even if they were, they didn’t take nearly as much time as they should have. I also find it surpassingly strange that they didn’t find that Apple infringed on Samsung’s (arguably more weighty and important) patents, which were also far more technically complex.
Did the jury rush through the verdict, perhaps in a gesture of throwing up their hands given the hugeness of the task? If so, then it would have seemed more likely that they would have rubber-stamped Samsung’s complaints as well. Or, were they simply far more enamored with Apple, and so were prepared from the outset to punish Samsung and the deliberation process was incidental to them?
I have not idea, and really shouldn’t speculate on their reasoning (or lack thereof). I just can’t conceive of any process by which the jury could have adequately judged the numerous claims being made and arrived at such a one-sided verdict that wasn’t seriously rushed.
In conclusion, let me say that I’m a strong proponent of intellectual property. I consider it valid and of vital importance, both to the economic strength of a society and in terms of protecting individual rights. That said, I think Apple v. Samsung highlights some real problems with the patent system as it’s been (and continues to be) applied to this technology, and hope that in trying to resolve the problems, the powers that be don’t throw the baby out with the bathwater.
In the meantime, I waited with bated breath for the impact that this verdict will have on the continued development of the mobile market. While I wouldn’t want Apple’s legitimate intellectual property to be trampled on in the name of what’s “best for society” (a standard that I reject), I also don’t want to see technology hampered because some company patents a general, vague, and trivial mere idea.
What are your thoughts? Am I all wet here? Let me know in the comments.
Update: One of the jurors gave some thoughts in an interview with CNET:
Well, there were several [pieces of compelling evidence]. The e-mails that went back and forth from Samsung execs about the Apple features that they should incorporate into their devices was pretty damning to me. And also on the last day they showed the pictures of the phones that Samsung made before the iPhone came out and ones that they made after iPhone came out. Some of the Samsung executives they presented on video from Korea, I thought they were dodging the questions. They didn’t answer one of them. They didn’t help their cause.
The implication seems to be that the jury did, indeed, get a bad first impression of Samsung. I’m bothered by this particular quote, because companies often conduct competitive analyses and identify features that they should offer in order to make their products more competitive. I don’t see anything inherently wrong with this, in that features can be provided without infringing on any other company’s intellectual property.
I don’t know if I blame the jury, though. Perhaps complex cases like this shouldn’t go to jury, but rather should be handled by judges well-versed in the particular laws. In any case, if the rest of the jurors shared this sentiment, then that might help explain how they arrived at such a quick verdict. I think it also doesn’t say very good things about Samsung’s lawyers, who perhaps could have disarmed this perception in cross-examination.
I’m reminded here of when Chrysler created the minivan. Other companies were quick to follow suit with their own smaller, lighter, more comfortable vehicles, and a new product category was born. I’m sure that those other companies—Ford, GM, Toyota, Honda—made their own lists of popular features in Chrysler’s minivan, and set out to offer as many of them as they could in their own vehicles.
If Apple were Chrysler, however, would they have argued that nobody else should have been able to make minivans? It does seem that way to me, at least a little.
Update 2: Groklaw has published some stuff that makes the jury verdict very suspect. I have a feeling we’re going to be in for one heck of a show over the next few months (or years).
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