"Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that." Lewis Carroll
With the iPad 3 due to appear in weeks and iPhone 5 already on plan, Apple [AAPL] has extended its litigation against former ally Samsung, just days after laying the smackdown against Motorola's attempt to subvert industry standards in that company's Google-sponsored war against the iPhone. This time Apple is seeking to get Samsung's Galaxy Nexus banned in the USA.
[ABOVE: Co-developed between Google and Samsung, will the Nexus find itself banned in the USA?]
Innovation, imitation, fair use?
In a lawsuit filed in the US District Court for Northern California, Apple has claimed the Nexus infringes four of its patents that relate to:
- Touching a number on a Web page to dial (data tapping).
- Word placement
- The 'swipe to unlock' function.
Apple is claiming -- correctly -- that allowing sales of Samsung's derivative device would "cause Apple to lose market share to Samsung that could support a finding of irreparable harm."
That the platform war continues unabated is made clear in a second statement from the company, in which it says: "The smartphone market is at a critical juncture, as the overwhelming majority of consumers move to smartphones, and the consumers' long-term preferences and purchases may be determined to a great extent by the operating system on their first smartphone."
Doublespeak and double standard
This is the real deal behind Apple's attempt to draw a line in the sand between its own user interface and design ideas and those of its copyist competitors. Apple is insisting its own ideas are respected, while imitators are attempting to secure a foothold in the rapidly-expanding smartphone market by aping ideas used within the iPhone.
Apple puts it this way, saying Samsung's attempts to emulate its patent-protected user interfaces are designed to secure that foothold, this is: "Precisely why Samsung copies Apple's products and incorporates Apple's patented features, i.e., in order to lure crucial first-time purchasers away from Apple."
Launched in the US in October 2011, the Nexus runs Android 4.0 (the stupidly-named 'Ice Cream Sandwich'). Samsung's response to Apple's salvo is typical. In the response the company -- currently under EU investigation for alleged anti-competitive behavior in the smartphone industry as evinced in its partial commitment to FRAND licensing agreements -- said:
"We continue to assert our intellectual property rights and defend against Apple's claims to ensure our continued innovation and growth in the mobile communications business."
Don't underestimate the significance of these battles. Apple has so far sold over one million iPads in South Korea (Samsung's home turf). Apple and Samsung are fighting over 20 legal battles across 10 or more countries as they battle for leadership of the smartphone industry.
[ABOVE: Those heady days in 2007 when Steve Jobs' launched the iPhone. Back then, Google's Schmidt still sat on Apple's board, and the Android OS was apparently a little like a BlackBerry. How things change.]
What makes it unique?
Apple's fight is to convince the courts that its patented user interface technologies must be considered proprietary and should not be imitated without license by competitors. Competitors remain tied to Android, and until Google delivers a truly unique version of that OS, then the proxy war between Apple and Google will continue.
An open battle between Apple and Google in the courts seems ever more likely. Many of the user interface features Apple is fighting others over are included within the Google-developed Android OS. This drives FOSS Patents' Florian Mueller to state: "In this case, stock Android itself is at issue. This means that Google cannot deny its undivided responsibility for any infringement findings."
Mueller also points out that much of the previous and existing litigation seems a little ineffective, but with Apple now facing systemic Google-supported abuse of the nature with which IP holders are required to honor FRAND patents, he now concedes:
"Because of the need for Apple to respond to FRAND abuse by companies like Motorola and Samsung, wholeheartedly endorsed by Google, I now accept the fact that Apple needs to ratchet up and accelerate its enforcement of standard-unrelated patents."
Make a stand for FRAND
What those firms fighting Apple with what seem to me to be clear abuses of the standards of behavior which govern the FRAND licensing systems should be aware of its that Cupertino counts a horde of similar patents of its own.
Should Apple's enemies prevail in their FRAND fights, then what's to stop Apple beginning similar actions against them? And if that event were to transpire, what damage would it make to the many agreed industry standards on which we all depend in order to ensure devices from different manufacturers interoperate?
I believe it's important to stand up for transparent and un-prejudiced handling of FRAND licensing agreements, and feel those firms who are using FRAND patents as part of an attempt to combat Apple are setting in motion wheels which could imperil future evolution and technology advancement.
There seems to me to be a case to demand that patents held under FRAND agreements be ceded to a neutral third-party body (most likely the relevant standards organizations) for licensing and collection of fees.
That's because a growing list of companies (Motorola and Samsung, for example) are proving themselves -- at least to my eyes -- as being untrustworthy in their handling of FRAND licensing.
This also means consumers need to look to products from such companies and firmly analyze the small print of their guarantees to ensure after sales support is rubber-clad -- will firms incapable of handling tech licensing in an honest and transparent manner be capable of honoring your device guarantee in the event the product fails? It's all a truly dreadful business.
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