It’s taken me some time to figure out what I wanted to say about this due to the complexity of both the case and its repercussions. I don’t think I’m ready to predict what’s going to happen in the smartphone market, however. I’ll leave that for another day*.
First of all, this case was a total indictment of the patent system in the US. The USPTO is simply unable to deal with the volume and technical sophistication of patent applications and seem overly willing to grant patents without concern for prior art, obviousness or uniqueness. Simply put, there are too many patents. But the jury wasn’t charged with determining patent validity, it was charged with determining whether or not Samsung had violated those Apple patents.
Patents aren’t trade secrets. They’re available to be read by anyone so as to not force infringement on unsuspecting companies and individuals. Hence, there’s no way Samsung could not have known they were in danger. No way. The company I work for subjects every new product to check for infringement as well as a check for anything new that can be patented (with the hope of catching someone else who hasn’t bothered patenting it). We have a entire department of lawyers and researchers who do nothing else but check the patent database for competitor’s filings. To believe that Samsung doesn’t do the same is naive. They gambled; they lost.
I think Samsung’s more recent products reflected an awareness of the infringement even before they got to court. They seem to have deliberately changed some design elements, their new tablet in particular, to clearly differentiate them from Apple designs. But this isn’t innovation, it’s “lawyer-mandated design”. I’m sure that Samsung is capable of being innovative, but by choosing to build phones and other devices on Android, they unfortunately ceded most of the ability to innovate to Google. It’s a tradeoff – save money on the system software design but lose control over that software design at the same time.
Second, I believe this verdict is going to force us to consider what innovation really means. It’s always implied some level of newness, but we’ve been willing to tolerate some copying simply because too much newness is sometimes impractical and/or poorly accepted. Look at Windows Phone. It’s very much different from iOS and Android. You won’t mistake a Windows Phone screen for anything else. There’s no question that it does things that its two major competitors don’t and does some things that they do better. But it’s not selling well. Not having used it I can’t say for sure, but there’s a good possibility that it’s just a bit too different.
So what is a smartphone maker supposed to do? Invent your own OS? That’s difficult, expensive, time consuming and risky. License someone else’s OS? That’s quick and easy but denies you a vector of differentiation that exposes you to patent litigation. I myself don’t have a good answer. Between Apple-Samsung and the Windows Phone experience, it’s simply too hard for me to recommend one or the other. If I was a smartphone maker who also had a time machine, the make your OS choice is the clear winner. I’m sure Samsung and other Android OEMs are rethinking their decisions to go with Android but they don’t have time machines. They’re stuck with what they have and suddenly find the way forward much harder to navigate than ever before.
So is our new definition of innovation “making something that’s new but no so new as to turn off people used to the old things but new enough so that no one can sue us for patent infringement while at the same time appearing close enough to what already exists”? It’s a self-contradictory definition, and that’s troubling.
It’s no secret that I’m an Apple fan but I was wishing that this case would be settled in arbitration rather than make it to the jury. Now that it has, time will tell what effect it has on the smartphone market.
*Note that I talk mostly about software here and not much about hardware. I feel that between all of the telecom standards, carrier restrictions, user expectations and technology limitations that it’s much more difficult to make radical changes in the hardware than it is in software. Feel free to disagree.