It is with a real sense of despair that I read the inner details of the Apple vs Samsung case in America. The verdict is well-known, Apple won, and with it they are following up with an injunction against Samsung selling their products in the US. At the same time Samsung will appeal.
As a patent holder myself and following a career of working in Pharmaceuticals I recognise the necessity of patents to propagate science and reward the inventor. The principle is sound but this application is problematic – both in the way the verdict was legally stage managed and in the scope of the patent.
First on the stage management: Apple played a dangerous game and set a worrying precedent for them, their psychological trump card (meticulously but negligently developed by their lawyers) was to present the jury with a ‘checking’ of rights and wrongs [mark if you agree there was an infringement]. This compared essentially one Apple model against a multitude [20 or so] models from Samsung and was a successful psychological bear trap. The evidential bias was overwhelming, on every line of every table, the jury ran through whether the Samsung Galaxy, Galaxy S2, …… infringed against the one Apple product. The way this stage management stacked the cards is a well-known phenomenon to anyone doing preference scales [for example the Lickert tests]. People have a natural tendency to avoid the extremes (all guilty, or all innocent) instead they go for the middle, for Apple the middle was enough and whilst not every Samsung model was guilty of infringement they were found guilty of infringement for many models – game over the injunction cites 8 devices enough to wipe $8bn off Samsung’s share price.
But this is a pyrrhic victory, by suggesting this analytical framework for judgement Apple have upset their own Apple cart. Now the very many vendors of iPhone or iPad competitors can line up their array of products against Apples single product – there are any number of technologies and ideas that Apple have embedded within iPhone which they do not hold exclusive rights to. So imagine the orchestrated case on iPhone infringements arrayed against the various phones from Nokia, Samsung, HTC and so on. Now use the same rigged psychology of long tables of feature comparisons and very soon there will be a vote against iPhone, an infringement that will inevitably be followed by a marketing injunction which for Apple does not take a single product away but takes their entire market away. Who is the smart lawyer now? Of course Apple may argue ‘double jeopardy’ but by adding ‘noise’ into the legal system they make the outcome a lottery, a lottery in which those with more stakes will win (as an American might say it’s the math stupid!).
The next worrisome aspect of the Apple finding is the inseparability of the invention in the field of usability patents. Usability patents are unlike (say) Pharmaceuticals where discrete stand-alone technologies are functionally and operationally distinct – for example a cardiovascular agent is ineffective in respiratory disease. The ‘rubber-band’ is a neat trick to a common problem embedded in an ocean of other neat tricks. By their own reckoning Apple have around 15% of the smart phone market and, as Esther Dyson points out, usability is familiarity. So perhaps Apple do indeed have a novel feature in their user interface but this is a feature that only 15% of all smart phone users will get to know and love, the mass of the market will (now) have to achieve the same end point in a different way via a yet to be programmed technique. Instead of being a beacon for the mainstream the Apple interface will become the mine-field of tricks to be avoided by the rest of the market. It will be technological Esperanto – undoubtedly better and aesthetically pure – but used by very few people and beaten in practicality by the mongrel languages such as English, French, Chinese etc. Here the patent ruling is the stark warning ** do not follow **, and many other thinkers from Ghandi onwards have made the point that leaders need followers.
Usually posts on companies end with a short statement on the authors vested interest in the subject, I can state I own no Apple shares but if I did I would sell now.
