Forget Apple v Samsung, coming soon it's Apple v Google

Keeping us entertained while we wait for the multi-core, 4-inch, iPhone 5 with its 12-megapixel camera, things didn't go well for Samsung last week. Apple [AAPL] succeeded in its mission of proving its Korean partner a copycat, winning a billion-dollar compensation package and sending the Galaxy maker's shares into free fall. It seems inevitable Apple will bring the fight to Google next.


[Above: Apple's case in one image as shown in the court. Via:  AllThingsD]


Since the verdict Samsung’s lost $12 billion of its share value -- the value of Google’s Motorola Mobility purchase. A senior Samsung executive walking into an emergency meeting concerning the case called the verdict “absolutely the worst scenario for us.”

While the company will appeal against the judgment, it seems it hasn’t learnt its lesson and continues to spout the same old reality distortion concerning innovation and consumer advantage. The verdict: "Will lead to fewer choices, less innovation, and potentially higher prices," the company said. My response is to wonder if choice, innovation and price mean all smartphones need to look the same?

With a sense of impending doom Google has already begun attempting to distance itself from the defeat. It knows that with this major victory against Samsung under its belt, Apple’s next step will be to take on the Android OS and the company it regards as a traitorous ex-ally, Google.

You could say that while the last 18 months has been characterized as Apple versus Samsung, the coming weeks will see the story change to one in which we see Apple take on Google.

Google has taken steps to protect itself and continues to spout its argument that Apple is turning to litigation in place of innovation, even as the search giant prepares to abuse the spirit of Motorola Mobility’s industry-agreed FRAND patents in order to innovate its own litigation.

The whole thing is really rather ugly.

History only repeats if you let it

I can remember a time not too long ago when Apple and Google were seen as the conjoined forces of liberation and change, working hard together to shift the dominant control of Microsoft

Microsoft, a proven monopolist at the time under legal constraints in the way in which it was doing business needed Google and Apple to succeed in order to diversify the PC market. The Department of Justice wanted the market to be shaken up with the power of the dominant player diluted. 

In those terms if you think about it, Microsoft CEO, Steve Ballmer, has successfully steered that company into shedding some of its ill-gotten advantages while remaining a viable business. Not a bad feat, and probably the best that could have been achieved in the circumstances.

No longer under constraint, Microsoft hopes to bring the fight back with Windows 8. Despite the anti-Apple rhetoric, Microsoft’s Ballmer is perfectly capable of striking a deal with his old adversary -- note the patent sharing agreements between Apple and the company when it comes to tablet and smartphone technologies. The deal won’t let either party copy each other’s products, but does allow them to use similar technologies. 

It’s amazing what you can do with a licensing agreement.  

It saves millions in legal costs.

Google faces challenge

Apple had offered Samsung licensing deals. It was only after it did so that it decided to submit to the legal process. “We chose legal action very reluctantly and only after repeatedly asking Samsung to stop copying our work. For us this lawsuit has always been about something much more important than patents or money,’’ Apple CEO Tim Cook said in a statement following the judgment.

It isn’t as if Samsung -- for all its protests -- really had to take it to the courts. Presumably similar deals have been offered to Google, but that company has its own problems respecting privacy and copyright

Google appears to see all ideas as nothing more than data, which should be freely available to all. It isn’t alone. Many seem to agree that music should be free, data should be free, that patent and copyright are enemies of human creativity. There are merits to the argument. However, Google’s true position is best illustrated by the enthusiasm with which it shares its (in some cases Stanford University-licensed) search logarithms with competitors in the search industry. Clearly it places a great deal of value in some patented ideas.

The threat Google faces when Apple’s legal team deliver their court summons to Google headquarters is written within the company’s own history. That history shows many instances in which critics argue it could have been more generous in respecting the rights of intellectual property holders.

Apple’s team needs only to illustrate this to the jury, and the stage could be set for the team to diminish Google’s counter-arguments during the trial. 

In this regard it shouldn't really matter how many FRAND-based counter suits Google might wave at Cupertino. That strategy is deeply damaging and threatens to shatter the consensus principles which make industry standard technologies such as 4G or Wi-Fi or even HTML 5 possible. 

I’d argue that abuse of FRAND agreements by Google and its satellites could raise even more attention from anti-trust authorities worldwide. Though I'm not a lawyer and you shouldn't take any of these statements as anything more than personal opinion.

Don't be evil

Samsung versus Apple may be a major victory (pending the predictable dramatic appeal) in this battle, but you shouldn't confuse the event as marking the end of the war. The war will continue.

The phrase, “Don’t be evil” comes to mind. It’s meaningless, of course. After all, evil is a concept the meaning of which differs between different people, cultures, religions and times. Just because a firm thinks what it is doing is good doesn't necessarily mean it is good for anyone outside of that firm. I'm sure Microsoft thought it was doing things as a force for good until it finally got told it wasn't all those years ago.

Is Apple being evil too? 

Illustrating my above point, your position on this depends on your chosen belief system rather than any universal constant. Perhaps history can provide a guide?

Look to Apple’s history and you’ll recognize that it lost the desktop GUI wars to Microsoft following a sequence of events and many poor decisions which almost led to the company’s collapse. With those events woven into Apple’s historical DNA, it’s hard to see how it could do anything other than try to fight its corner. 

The fact Apple has prevailed in the recent US case against Samsung suggests its moves to defend itself are justified. However, like the concept of evil, the legal system is also far from being a universal constant, so Apple can’t -- and doesn’t -- expect to win every battle in every jurisdiction.

When it comes to the inevitable battle between Google and Apple, there seems to be only two likely outcomes:

  • Google and it's Android partners sign licensing deals for Apple’s technology. This is my favored option, because the focus for industry conversation could then move from avoiding use of each other’s IP to one in which all players can deliver a forest of innovative devices. Consumers most benefit from innovation, and product prices always decline once manufacturing achieves economies of scale.
  • Google refuses to reach a deal and these tedious court cases wend through the legal system for years and years with innovation stymied as all sides attempt to avoid copying each other and making things worse. At some point in this process, Google -- it seems to me -- will be found to have abused some Apple patents. Its FRAND-based counter-arguments will eventually be dismissed, once governments force a standard agreement on all players in that space. All these decisions will cost millions of dollars and millions of hours of time, time which could be better spent on creating new devices -- to the true benefit of consumers.

Please, end this madness

My opinion? Google and it's partners should take a big deep breath and reach a licensing deal with Cupertino.

We can then breathe a huge sigh of relief and start talking about more interesting things than this litigation, such as how mobile devices can transform healthcare and education, and meeting challenging questions such as how to ensure there's no divide between the digital haves and digital have nots. 

Sadly I don’t think we’ll see any such deal reached. This leads me to believe the next step in this war will see Apple take on Google directly in the courts. Probably just in time for Christmas after most of Google’s services are dismissed from within iOS 6.

For most consumers all this legal nonsense is deeply dull and serves to take the shine off of what should be the most exciting time for personal communications across nations, ideologies and language limitations this planet has ever seen.

Some believers of some religions may recall the story of the Tower of Babel. Already equipped with a common language, humanity chose to erect a huge tower with which to reach Heaven. God cast that tower down and caused all humanity to speak different languages in order to prevent such hubris again.

The mobile era promises us new levels of communication and understanding across wide swathes of humanity, but it's all sides in this dispute -- Apple, Google and their partners, not God, who are threatening to break the growing tower of universal communication down all over again.

Don't be evil? 

Don't make me laugh.

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Copyright © 2012 IDG Communications, Inc.

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