Apple v. Samsung: Why peace can't happen in the patent war

It's not often a US Judge, fully conversant of all the details of a case agrees with a tech blogger, but that's what's happening in the interminable Apple [AAPL] versus Samsung drama under Judge Lucy Koh, who, like me, says the two litigants should quit quarrelling and give peace a chance.

Apple should make peace with Samsung Judge warns

Why is peace unpopular?

I recognize that's an unpopular opinion, not least among the highly-paid trial lawyers representing the two firms who are no doubt collecting handsome paychecks from it all.

Apple launched the lawsuits, and, while Samsung tries to deny it, it's pretty clear the Judge Koh has some sympathy for that move. Why else does she seem inclined against Samsung's attempt to declare a mistrial? Why else would the conversation now be moving to one in which the level of damages are addressed?

You don't pay damages if you haven't damaged anything.

Meanwhile Samsung's huge legal/marketing machine argues that jury foreman, Velvin Hogan, acted as some kind of sleeper agent primed to do harm to the company on strength of having been sued by Samsung partner, Seagate, nineteen years ago. They think this matter should have disbarred him from acting in the case: a point with which the Judge doesn't seem to agree.

The Judge appears to be growing impatient with the manner in which both sides are engaging in this trial. "I think it’s time for global peace," she said, and while she is examining the one billion dollar damages settlement (which may be reduced under her oversight) she doesn't seem prepared to overturn the verdict, according to the army of legal experts winging their opinion to any who'll listen.

Good times, bad times

Peace, said the judge, would be: "Good for consumers, good for the industry and good for the parties."

Samsung responded to this call by saying "We are willing to talk. The ball is in their [Apple's] court.”

Apple meanwhile asked the Judge to uphold the existing verdict.

Decoding these statements, I anticipate Samsung wants Apple to end all legal action before it will discuss any form of settlement. Conversely, Apple wants the case precedent set so it can negotiate from a position of strength.

This means Samsung's statement that the ball's in Apple's court could be seen as a way of saying it won't play ball in peace unless Apple makes peace first, which will never happen.

Ultimately, Samsung recognizes that the partisan nature of the Apple-versus-Android debate means it is gathering strength as the 'anti-Apple' with every day the case proceeds. Apple, meanwhile, isn't prepared to allow Samsung to gain such strength without at least achieving something a little like victory.

Safe from harm?

However as both sides turn their focus so strongly on each other, the case is likely to dent the competitive edge of senior management and, like any war, could leave both sides vulnerable to an unanticipated attack upon their fragile mobile principalities by a common foe both may so far have overlooked. (RIM, Nokia, or another unknown manufacturer all have an interest in exploiting the opportunity).

While the motivations of both sides may be easy to understand, the eventual outcome will inevitably be some form of compromise  elected by the courts.

That's an opportunity. Both firms could become poster children for corporate conflict resolution if they quit fighting and reached a deal, but Apple would likely insist Samsung admit at least some guilt, which the latter cannot easily admit.

There is no doubt a deal will be made. The threat is that neither side at present can control what that outcome might be. Why? Because in leaving the resolution in the hands of the courts it's unlikely either will achieve anything other than a partial and pyrrhic victory.

Jaw-jaw

Knowing that the victory will be unpalatable, it seems to me both sides would be better served agreeing their own jointly made (though very likely still unpalatable) deal. Such an agreement, painful as it might be, is likely to be far better than any thrust on the parties by the courts.

In business, as in life, jaw-jaw always beats war-war. It just makes sense to agree with Koh: Apple and Samsung should quit fighting and agree a robust, albeit uncomfortable, peace.

Unfortunately this outcome seems unlikely. This means that by the time the cases do conclude the smartphone industry will be mature and attention will have moved on to the next big thing in consumer electronics, which will probably be some form of wearable mobile device.

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