Daniel Eran Dilger
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Why Apple is suing HTC rather than Google or Android

Daniel Eran Dilger

Apple’s patent assault on HTC (the maker of most Android and Windows Mobile phones) has gotten the tech media in a tizzy. Why isn’t Apple taking on Google or Android instead, and is this action the sign of a tough new Apple that hates Google and open source and wants to kill Android? That’s all wrong, here’s why.
Apple now strikes first?

There are several interesting aspects to this case. The first is that Apple is suddenly taking the lead in proactively policing its intellectual property. This is a change in behavior, but not something that the company’s executives were ever shy about threatening.

In unveiling the iPhone three years ago, Steve Jobs pointed out that Apple had patented various unique aspects of the device to forestall wholesale copying, at least to the point where Apple could remain five years ahead of the market. More recently, chief operations officer Tim Cook said his company would be ready and willing to take on anyone who violated its patents.

That comment was picked up and bandied about by pundits to suggest a war between the iPhone and Palm’s then new Pre, but Apple did not ever sue Palm. Such a lawsuit would be pointless, as it would only consume Apple’s attention while likely taking Palm out of the running in smartphones. Since Palm has never been a credible threat, this would only help Google’s Android consolidate its position as “the other smartphone platform.”

Emotional idealist pundits were so adamant about well-wishing for the Palm Pre a year ago that they fell for the hype and took the company far more seriously than they should have. Back then, I laid out exactly why Apple saw no real threat in Palm, nor any advantage in engaging the company in a high profile fight, neither in the market nor in court.

Why Apple’s Tim Cook Did Not Threaten Palm Pre

Apple vs Nokia

Apple has sued Nokia over iPhone-related patents, but that was in response to Nokia’s own lawsuit. The difference between the two companies’ patent actions is that Nokia was suing Apple in an effort to extract higher royalty fees for patents related to openly licensed technologies. Apple was simply suing to stop patent infringement.

Nokia was demanding both much higher fees from Apple for its 3G and WiFi patents than for other companies (a hypocritical position given that Nokia takes a lot of credit for offering such technology under supposedly nondiscriminatory licensing terms), and also attempting to gain the ability to use Apple’s proprietary, patented iPhone technologies.

The real patent story behind Apple vs Nokia

Apple responded to Nokia by filing a suit aimed at blocking it from continuing to use Apple’s iPhone technologies at all. As Steve Jobs might say on stage when asked that type of question directly by somebody when the press was ostensibly listening but apparently not actually paying attention, “Apple isn’t in the business of licensing technology.”

Special Report: Why I can’t report on the Apple shareholder meeting

Apple vs Android?

While Apple handled Palm very differently from Nokia, it appears that the iPhone maker’s work in mounting “a good offense as its best defense” against Nokia was in part recycled in order to take on HTC, that maker of the Google-branded Nexus One.

So why did Apple sue HTC rather than Google or the Android Open Handset Alliance? That answer seems simple enough: HTC is the linchpin not just for Android but for Windows Mobile, or as Microsoft likes to say these days, “the vaporware now known as Windows Phone 7.”

By pulling HTC into a legitimate legal skirmish over patent infringement, the wheels come off both sides of the cart, sending other Android makers into creative mode (where they have to envision a smartphone that doesn’t look exactly like the iPhone) and sending WP7 into turmoil (because Microsoft has bet all of its marbles on a plan that sacrifices today’s WiMo to resurrect it as WP7 in a make-or-break effort that is modeled to look as close to the iPhone as possible).

As you’ll recall, that was also Microsoft’s Zune strategy (at least in hindsight): dump the existing, moribund effort to widely license PlaysForSure across an industry of independent media player hardware vendors offering “choice,” and concentrate on one design that is based as close as possible to the successful iPod as Microsoft could dare.

The problem, of course, is that this did not work in 2007, or 2008, or 2009. So Microsoft is trying it again in 2010, bringing to mind that thing Einstein said about expecting a different result and insanity. Even more ridiculous is that Microsoft was also laughing at Google’s Nexus One as being a stupid thing to try to pull off while not also offending its other licensees.

Microsoft frets Google’s Nexus One will suffer Zune’s failure

Apple vs HTC

Unlike Palm, HTC is a credible threat. The company poops out new models every few months, and is strategically aligned with both Google’s Android and Microsoft’s WP7 vaporware. Also recall that this company was credited with building 80% of all the WiMo phones that ever were.

So HTC is a two headed hydra, one that could survive the death of either WiMo or Android and still remain alive. This is the absolute best target for Apple to focus on in demonstrating the power of the iPhone death star; it’s like shooting Greedo while also taking out Jabba the Hutt with the same bullet.

If Apple loses, at least it can’t say it didn’t take its best shot. If it wins, it forces Microsoft back to the drawing board, delaying WP7 and effectively quenching any fire left in that company’s mobile loins.

The Spectacular Failure of WinCE and Windows Mobile
Microsoft: HTC has made 80% of all Windows Mobile phones
Why Microsoft Will Slaughter Its Windows Mobile and PC Partners
android phones

A win would also force Android developers to think differently, rather than simply aping the iPhone as closely as possible. Remember that when Android first appeared, it was clearly targeted at WiMo, both in terms of hardware designs and overall strategy. More recently, it’s all about creating an iPhone clone that pundits can proclaim as almost being the “iPhone-killer.”

Apple’s strike at HTC is also representative of an assault by America on Chinese (Recall that Taiwan is the ‘Republic of China’) cloners. If Apple wins, overseas companies hoping to simply duplicate Western technology will give some pause before following in the footsteps of HTC.

Apple can beseech the ITC to block infringing HTC phones, requiring that the company either make US and non-US models, or simply make one global model that isn’t just a rip-off of the iPhone.

Google’s Nexus One takes on Droid as Apple’s iPhone App Store grows

Apple vs Open?

Meanwhile, the pundits who professionally attack Apple as their contracts legally require them to do have come out with a number of reasons why the company shouldn’t act to protect its intellectual property. Among them:

Steve Jobs once said “great artists steal.” Actually no, Jobs was quoting Picasso, who originally used the phrase to talk about “stealing” great ideas in art. Referencing that idea, Jobs added, “we have always been shameless about stealing great ideas.” Great ideas in art are not patented technologies. Apple’s great ideas have always been shamelessly stolen, so it’s not like the company is a bottom feeding troll. What Jobs was clearly indicating was Apple’s liberal openness to new ideas. He was not advocating intellectual property theft.

Apple chooses not to enter lots of markets because it has to respect intellectual property. For example, the reason Apple doesn’t have DVD ripping in iTunes is not because it can’t figure out how, or because it doesn’t want to offer such a feature (as it does for CDs), but because it has to respect its licensing agreement with the DVD Forum.

Another example is iTunes Reply, a cloud streaming service which the company developed but has had to keep on hold as it has worked to sell it to labels and studios for the better part of a year now, waiting for their approval because it’s their content, not Apple’s. Apple doesn’t steal in the literal sense of the word, but it is very open to pouncing upon great ideas that are not protected by copyright or patents or legal licensing agreements that preclude it.

The simple-minded fringe of Android’s fans would prefer to think that Jobs is simply saying that Apple takes and does not give, as they smugly refresh their WebKit browsers looking for some news on whether any real games or non-hobbyist apps will ever appear for their Java-clone platform. Their love of “openness” is not even challenged by their use of a platform that bundles its core real value as non-freely licensed binaries. Too bad they’re too enraptured with GPL ideology to realize that the “with Google” inside Android is the non-free part; they might realize that their position is beyond ridiculous.

Google fans fail to contemplate why Android is free

Apple froth froth Xerox froth Microsoft look-and-feel froth froth. When they really get excited, the Apple haters start padding their frothing with selective memories of anecdotes they’re read from the 1980s. One is that Apple itself copied the Mac from Xerox back in the early 80s, and therefore eternally lost its right to ever protect its own intellectual property.

No, in reality Apple exchanged a million dollar investment deal with Xerox to allow it to commercialize PARC technology that Xerox was afraid to bring to market itself. It then hired away Xerox PARC people who were tired of working on advanced technology that nobody would ever see, not unlike the minor iPhone engineering exodus that resulted in the development of WebOS at Palm. What Apple brought to market with the Lisa and then Macintosh was dramatically different from Xerox’s own, a fact proven by the market when Xerox decided to bring its own product to market, unsuccessfully.

In contrast, Microsoft, acting as a trusted software partner with Apple in the Macintosh program, essentially took Apple’s technology verbatim and brought it to IBM’s PC platform. Apple sued Microsoft along with a couple other companies who were doing the same thing. However, Apple did not sue other companies who were developing a windowing operating system for independent hardware platforms not aligned with the IBM PC monopoly, including Atari’s ST, Commodore’s Amiga, and the original BEOS from Berkeley Systems used by the C64. None of those were attempting to steal the value of Apple’s work on the Mac and apply it to IBM, the company’s largest hardware competitor.

But that’s exactly what Google is doing today: ripping of the iPhone experience and then giving it away to WiMo hardware partners like HTC. Unlike Microsoft, Google isn’t doing it to sell the operating system software (there’s no money in that, as Microsoft has proven over the last decade of trying to license WiMo). Google is doing it to monopolize mobile advertising in an assault on WiMo. It just so happens that achieving one’s goals through theft is easier than doing original work. But it isn’t legal, nor without consequences.

Apple’s Billion Dollar Patent Bluster

Whither the Apple Google Partnership?

So with Android, Google is being a bit like Microsoft in stealing the Mac experience for the PC, and a bit like Microsoft in backstabbing its former partner to take over all the business for itself, both in the sense of how Microsoft jilted Apple in Mac software, and how it betrayed its alliance with IBM’s OS/2 in order to promote its own Windows. But the thing is, Google can be a rogue monopolist with immunity because this isn’t technically illegal in any sort of actionable way until laws are egregiously broken, and nobody seems to be big on policing anti-trust laws anywhere but Europe.

Additionally, it would be a big mistake for Apple to take on Google directly. The two have a healthy alliance in a number of respects. Google pays Apple millions of dollars to funnel it search requests from Safari, both on the desktop and on the iPhone, iPod touch, and soon, the iPad. Apple also uses Google to power iPhone Maps and a variety of other services. Neither company would benefit from losing the other partner, and this is business, not an irrationally melodramatic soap opera with vindictive malice being the primary motivation for all activities (even if the tech press likes to paint everything that way for your entertainment).

It does appear that Apple is working to hedge its bets however. Rumors say the company is considering (or at least threatening) to align with Microsoft on search. Right now, Google IS search, but if Apple’s high profile customers were shifted to Bing by default, not only would few of them even notice, but Google’s monopoly on search would be instantly erased on mobiles and significantly tarnished on the desktop. Microsoft would gain major crowing power, and suddenly be able to begin leveraging its other monopolies far more powerfully against Google in search. Microsoft would suddenly be able to be taken seriously in search, something that hasn’t been the case for a decade.

How Microsoft Got Bing, And Why It Is Failing to Matter
Web search statistics show Bing stagnant, Google growing

This all happened before

This is a delicate balance for Apple. The last time it helped Microsoft that dramatically was in application software, back in 1982. Steve Jobs noticed that Bill Gates couldn’t break into the DOS apps business despite lots of trying, so he offered Microsoft the opportunity to leverage the Macintosh to gain visibility. This kicked off Microsoft’s Office business, and by the end of the decade, Microsoft was finally in a position to leverage its DOS monopoly to promote its Mac apps (Word, Excel and Powerpoint) on the IBM PC in place of the existing leaders in productivity apps (WordPerfect and Lotus 1-2-3).

Microsoft paid Apple back by doing its best to kill the Mac, and it took a decade for Apple to bounce back to the point where Mac OS X is now a painful thorn in Microsoft’s side and Apple’s own iWork for iPad is now shaping up to be the first real multitouch office suite.

However, that memory of the unintended consequences of aiding an unscrupulous partner isn’t lost on Jobs, and his company simply won’t allow another company to convert its functional partnership into an abusive relationship again (which is also why Google Voice isn’t on the iPhone). But the answer to this problem does not lie in suing Google, because Google does not really even own Android. Nor can Android be sued, any more than Linux.

Office Wars 3 – How Microsoft Got Its Office Monopoly

But this is not anything like Microsoft suing Linux

Microsoft couldn’t sue “Linux,” because it’s just an idea, not a legal entity. Instead, Microsoft mounted a PR campaign to strike fear, uncertainty and doubt in the minds of companies that might use Linux by announcing that it had a bunch of patents that were being violated by open source software, all while refusing to say what any of those patents were. Had it done that, the Linux community could have written loops around Microsoft’s patents to avoid any infringement.

However, Microsoft didn’t want to end infringement of its patents, it wanted to stifle Linux development. Apple isn’t in the same position, because it isn’t presiding over a monopoly under assault by open source alternatives. Apple is promoting a premium product that is sold as an alternative to lowest common denominator mobile platforms. So Apple actually does want to end patent infringement. But it also wants Android development to continue, because the best way to keep monopolies from occurring is to have lots of competition.

Android has played a significant part in killing any prospects for WiMo, and is currently offering some challenge to not just Apple but also RIM and Symbian and WP7, as well as fractionalizing developer interest in Flash and Silverlight on mobile devices. Apple can best thrive when there are the most competitors involved, each duking it out for customer attention and developer interest. That makes it easy for Apple to differentiate itself as the premium option.

A monoculture of Android, WiMo, Symbian, Flash, or anything else would make it much harder for Apple to sell itself as a viable premium alternative, just as Apple has long languished in many markets as the outsider platform with the Mac.

Microsoft’s Unwinnable War on Linux and Open Source

It’s the hardware

Apple, like HTC (and by extension Android as a platform in general terms), makes its money selling hardware. Google doesn’t really create or sell any Android hardware, it just rebrands HTC stuff, just like a number of other companies do (such as Palm’s old WiMo-era Treos).

By aiming its patent infringement case at HTC directly, Apple not only prevents Google from taking the value of its iPhone research and giving it away to the Chinese simply to monopolize the mobile adware market, but it also sends a warning shot across the bow of other Android makers hoping to shamelessly clone the iPhone.

Motorola and Sony Ericsson, the “death’s door Android licensees,” are not going to tempt fate in trying to copy the iPhone after seeing Apple embroil HTC in a long term lawsuit that neither of them could afford to wage. Nokia, LG and Samsung are all going to similarly be wary of ratcheting up a war surrounding smartphone patents. They’ll also be that much more concerned about the long term prospects of Microsoft’s WP7, which is, at least on the surface, as purposely infringing as Microsoft can get without actually delivering any substance.

Apple has no interest in suing Android out of business. It represents the same progressive use of open source code as the iPhone OS, from its *nix kernel to its WebKit browser. Android prevents just enough other hardware makers from going on their own to keep Apple distinguished as the only viable company marketing its own unique platform, while at the same time bleeding those licensees in a war to stand out as Android makers.

The Motorola Droid’s biggest enemies are the Google Nexus One and other HTC models. Apple doesn’t want to focus all that fighting at itself. It merely wants Android hardware makers to develop their own technology rather than infringing the iPhone’s patents.

Inside Google’s Android and Apple’s iPhone OS as core platforms
Inside Google’s Android and Apple’s iPhone OS as business models
Inside Google’s Android and Apple’s iPhone OS as advancing technology
Inside Google’s Android and Apple’s iPhone OS as software markets

  • miloh


    “I love my iPhone but it’s sandboxed, function-centric philosophy cannot compare on a usability OR productivity level to WP7’s DATA-centric philosophy.”

    Can you elaborate on the productivity part? I’m curious what you meant by that.

  • http://ObamaPacman.com ObamaPacman


    Your Xerox statement is still wrong.

    Here is a long analysis on the various myths related to Apple / Xerox GUI Copyright: http://obamapacman.com/2010/03/myth-copyright-theft-apple-stole-gui-from-xerox-parc-alto/

    Even Dan fell for one of the Xerox urban legends this time. However, keep in mind the information is 20-30 years old and reliable information is hard to find.

    Yeah love those old photoshops. I think Dan’s too busy making tech prOn though. =p

  • http://blog.cytv.com cy_starkman

    Hi Dan,

    Nice article, nice comment inserts.

    I don’t really personally see how MS is ripping anything from Apple though in WinMo7. You suggest hardware? As in a flat slab that’s mostly screen and has some buttons along the bottom.

    That’s a stretch don’t you think. Plenty devices have had that form factor before the iPhone. It would be better to suggest they were ripping off the Newton as there were certainly less devices prior to that that were a slab, mostly screen with some buttons along the bottom.

    It’s also a wee bit off track as the patents being slapped on the table in Apple vs HTC aren’t referring to a slab with a screen and some buttons.

    UI wise, it would appear on the surface that MS has put some effort in, it’s rather unlike what is in the market today. Doesn’t mean its good or bad, but it isn’t like the iPhone UI.

    I think you have gotten a bit of track with the WinMo7 thing anyway. The HTC thing is totally worthy of dissection.

    The patents… Beat up on a few of the comments with them, this stuff is way back in NeXT land. People are being clueless.

    At least half of them seem real low level OS stuff. I don’t think HTC is really the maker of those bits are they, so it is on some level an attack on Android.

    The others seem to be about HTC’s skins. Totally HTC. Or the unique use of sensors and software to create usability solutions. Totally HTC

  • Chipotle


    While I recently posted a long and slightly ranty demolition of the “Apple stole the Mac wholesale from Xerox” argument over at another blog because it’s ridiculously revisionist history, it’s not fair to be revisionist in an anti-Xerox fashion, either. Describing the Xerox Star as “a couple of GUI elements over a DOS-type OS” is, well, just as completely off the mark as describing the Mac (or even Lisa) as a repackaging of the Star GUI.

    The Star was basically an application-focused adaptation of the environment designed for Smalltalk, although it used an even more peculiar language called Mesa. There was nothing DOS-like about this. This was a fully object-oriented environment before the phrase “object-oriented” was even known to most people. There were concepts from Xerox in those days, somewhat ironically, didn’t actually make it out into the mass market until OS X (by way of NextStep), not the least of which were the Finder and iTunes column view and the concept of bundling application files together in one directory treated as a “package.”

    It’s also worth noting that the Newton and Steve Jobs have nothing to do with one another.

    Having said that, I agree that this suit may really be about HTC, not about Android in disguise. It may also be that once Apple had countersued Nokia, failing to sue other mobile phone companies who appeared to be in clear infringement of certain patents would actually weaken the case against Nokia. (I’m not really sure how good Apple’s case against Nokia is in the first place, or vice-versa.)

    @Dan Dilger:

    Sorry, but even as someone who has no real interest in Windows Phone 7, it’s simply stretching things way too far to call it a ripoff of the iPhone except to the degree that it’s a smartphone which makes a touchscreen integral to its experience. But the UI paradigm is very, very different. They are not just taking the iPhone UI, making it translucent blue, and calling it Windows Mobile Vista. WP7 is really a whole different animal. I’m highly dubious as to whether it’s different in a way which will prove better–I think its Big Bold Everything lowers information density to a point which may end up being very annoying when you have a lot of data to scroll through–but give credit where it’s due.

  • john.scully


    Sorry friend, for some reason my alerts were being sent to the spam folder.

    With regards to productivity, being that the contacts on the phone are less traditional ‘contacts’ and more indicative of a persons online presence, contacting a person via Facebook, Google, Live, SMS, phonecall, etc can be all accomplished with more fluidity. Hypothetically, you may go to a buddy’s contact page and see his Facebook status update and comment on it directly from there. He responds asking you to send him a particular PDF file. You browse for and attach the document, either from your phone or from online storage, and WP7 automatically sends it to his email address using your predefined email account. Accomplishing all this on the iPhone involves firing up (and closing) several apps, each tailored to one specific task. Again, all this is purely hypothetical based on what I’ve read and seen of the OS.

    Another thing is, although MS has stated that multitasking will be nonexistent save for a few base apps, but they have also more recently stated that it might be featured after all, albeit limited.

    Please bear in mind I have no plans to purchase WP7: as a heavy Google user my next smartphone purchase will be squarley a choice between the iPhone 4G and the next Android big offering. WP7 by all indications is reliant on MS Live accounts much as Android is on Google.

  • Joel

    “I love my iPhone but it’s sandboxed, function-centric philosophy cannot compare on a usability OR productivity level to WP7’s DATA-centric philosophy.”

    Wp7 has not been seen yet in a Production phone, away from the demo team. So I’m a bit confused how you can tell that…

    The same thing happened a year ago when Palm unveiled the Pre and that was supposed to be an iPhone killer. Are we going to have the same again next year…? Nokia or Samsung or someone else demos some new fancy phone that impresses Journos and Pundits alike. And then goes no-where.

  • Joel

    “Another thing is, although MS has stated that multitasking will be nonexistent save for a few base apps, but they have also more recently stated that it might be featured after all, albeit limited.”

    Translation: Feature-set hasn’t been decided yet and they’re trying to see what they can get away with.

  • gctwnl

    @Joel “The same thing happened a year ago when Palm unveiled the Pre and that was supposed to be an iPhone killer. Are we going to have the same again next year…? Nokia or Samsung or someone else demos some new fancy phone that impresses Journos and Pundits alike. And then goes no-where.”

    Complacency will get Apple nowhere, but luckily there are no signs yet of complacency. Given Apple’s speed in groundbreaking innovation (especially for the company) we expect miracles all the time and an unrealistic speed.

    In the mean time, Daniel has done a very good job elsewhere on RDM (Reality Distortion Magazine it is not ;-) explaining how Microsoft is currently in disarray in the mobile arena (e.g. Courier, Phone 7/Pink dualism, Zune, XBox software (no touch), certainly compared to how focused Apple is (iPhone OS, period and even that shares with OS X from laptop-desktop-server and in its development setup (Objective-C & kits)).


    So, while Microsoft is big and individual parts of it may come up with great ideas (and silly unrealistic ones) they completely lack focus in the user space. And that says something dire about the company, because it will be far from simpe to turn that around, especilly if top management does not understand the situation they are in (and they seem not to understand).

    Microsoft always had a good eye for strategy and they still have. But the Achilles’ heel of that position is that it is Garbage-in-garbage-out: feed the strategy with mediocre user experience skills and mediocre feel for limits of technology and it will be hit or miss for something really convincing to come out of that.

    Returning to topic: Apple law suit does worry me a bit, because if can become a distraction of focus.

  • john.scully


    “Wp7 has not been seen yet in a Production phone, away from the demo team. So I’m a bit confused how you can tell that”

    Notice I was talking about the WP7 philosophy and feature-set for the OS and UI, something which has been extensively covered and dissected by the tech media. Much like Apple can announce and update to the iPhone OS pre-release, and you can see if it’s bunk (like 3.1.3) or something to get excited about (3.0). If Microsoft can pull off what it’s promised and demoed with polish, all I can say is wow. Not wow enough to suck me into the Live ecosystem, but wow nonetheless.

    Oh, and more importantly, a number of repected and objective sites have had hands-on demos of the OS/prototype hardware (complete with video) and reported on it, I just did a quick google search and ended up with these: Engadget http://bit.ly/d2t7nt and http://bit.ly/9IhKBs

    With regards to undecided feature-sets and changes to spec, didn’t Apple initially limit all iPhone third party apps to web-apps? How about Copy-and-Paste, MMS, and countless more? And the length of time it took for Apple to add those most basic of feature-sets is the stuff of tech-legend– surely you will not penlaize a company for considering an upgrade PRIOR to a device’s release? There’s no problem with specs and feature-sets changing, as long as it’s for the better.

    [You refer to Engadget as being among "a number of repected and objective sites," but recall that these types of web properties have consistently expressed a wildly exaggerated level of enthusiasm about Microsoft's rather worthless set of vaporware products and failed consumer products, from previous versions of Windows Mobile to the Surface and Zune. Citing them as some sort of proof that WP7 will not be a spectacular failure is pretty silly. They hype everything MS can poop out PR about, and do so with absolutely no criticism of any kind for the most part. - Dan]

  • john.scully

    I think I’m going to drop the WP7 stuff, this post concerns Apple/HTC/Android and I’m starting to feel like I’m defending a mobile OS I don’t plan on investing in. I just appreciate good tech and give credit where it’s due.

  • Mark Hernandez

    Another insightful read.

    I’m glad you reply to people’s comments, Dan. There’s too much “hit and run” journalism today where people and politicians say things which go uncontested, unfact-checked and are oversimplified to the point of hurting rather than helping, etc.

    In the future I hope to develop a commenting system which uses color and popup balloons to help make it easy to identify people’s conceptual errors, including a “jail” where absurd comments are thrown and forgotten unless the commenter updates/learns how to have a discourse worthy of the 21 century’s complex Information Age.

    The kind of stuff we see the Republicans saying these days just makes one very sad to realize that the “critical thinking skills” of the general population are so poor that they’re largely successful in spewing wrong information.

    This article is the PERFECT EXAMPLE of how the complexities of our modern world are so poorly handled (oversimplified) by those who should know better, and forget that things almost always ARE complex and not easily put in perspective.

    But then, perhaps many if not most people do understand, it’s just that we don’t hear from them in comment sections. :-)


  • http://www.ericperlberg.com Eric in London

    While it doesn’t change anything in Daniel’s excellent analysis, here’s a bit more info about the legal case itself. Apple legal isn’t handling the case against HTC. Apple has hired one of the most prestigious international firms with a specialty in IP law, Kirkland & Ellis. Heading the Kirkland & Ellis team for Apple is a partner at the firm named Robert Krupka who is one of the world’s leading IP lawyers with a host of major wins in his pocket. He is known as someone who brings a case home to judgement rather than settlement. Also there are 2 cases not one. The first is a patent infringement case in the US District Court in the district of Delaware and which includes the “look and feel” patents including multitouch. Cases like this take years to sort through. Apple has also filed a case with the US International Trade Commission on a series of more foundational patents. The ITC usually responds with a ruling within months. HTC is up against some heavyweight artillary.

    Additionally I’ll add that Patent law exists to try to protect and encourage innovation in the market place. That is easily misconstrued, especially if you happen to be a programmer viz Ulicar’s points above. Patent law is not there to level the playing field and make it easy for competitor’s to make use of the ideas of others.

    Patent law specifically aims to give competitive advantage to firms which innovate by protecting the innovation against copying by others. A patent is meant to be a reward for innovation to guarantee to the inventor a competitive advantage so that other firms don’t just come in and copy the innovation (exactly as exists in this case where Android uses finger gestures etc etc)

    And further, to keep firms on their toes, new patents may be granted to other firms should they come up with significant improvements to the original patents thus giving the second firm a competitive advantage over the original firm. So the way Patent Law is structured it gives competitiive advantage to innovators but requires constant innovation to maintain the grant of competitive advantage in the patent. Lastly, if a patent isn’t defended when its infringed, it essentially loses its validity.

  • John

    Thank you, Eric, for your update on the patent situation. Most helpful.

    Just in passing, I find Malatesta and Ulicar opinionated and most unhelpful.

  • john.scully

    “You refer to Engadget as being among “a number of repected and objective sites,” but recall that these types of web properties have consistently expressed a wildly exaggerated level of enthusiasm about Microsoft…Citing them as some sort of proof that WP7 will not be a spectacular failure is pretty silly. They hype everything MS can poop out PR about, and do so with absolutely no criticism of any kind for the most part. – Dan”

    No Dan, I never said WP7 would be either a success or failure, you’re putting words in my mouth, something I will not stand for. What I said is that it appears to be a good OS and, contrary to what you said, a far different one from iPhone. I said that if Microsoft could polish it all off in the remaining year or so, it will be sweet. I also said I did a quick google search and those Engadget links were the first two I grabbed. Somehow I get the impression that unless it came directly from apple.com you wouldn’t buy it.

    [So you can speak for me in assuming what I would buy (which doesn't really matter, does it?), but I can't assume that your giddy anticipation for WP7 based on the consistantly wrong flack press is in fact, giddy anticipation? - Dan]

    I remember reading extensive coverage on WP7 on Gizmodo. The same Gizmodo that trashed both Windows Mobile 6.5 and Windows Mobile 6.5.3. The same Gizmodo that not only heaps praise upon iPhone but also features a weekly (and prominent) iphone app of the week’ section. Clearly their hands-on first impressions of WP7 won’t be biased: http://bit.ly/9bhwCK (and while you’re on there, please peruse the pictures and videos and respond to what you’ve been avoiding addressing: how your flawed assertation that WP7 copies the iPhone “as closely as possible” is valid on any level).

    Or how about SlashGear: http://bit.ly/aipJdE

    I could also mention BoyGenius but you’ve expressed disdain for “those kind of sites” so how about dedicated hardware review sites like Trusted Reviews: http://bit.ly/ahJmPa or a dedicated cellular reviews site like MobileBurn: http://bit.ly/aQovfB . I was tempted to throw in PCmag and PCWorld but I think the ‘PC’ in their names precluded them.

    If you want to make a point, fine; but please refrain from twisting peoples words. And instead of picking and choosing what to answer, how about just admitting you were wrong about WP7 aping the iPhone?

  • Joel

    @john.scully: “Somehow I get the impression that unless it came directly from apple.com you wouldn’t buy it.”

    With computers, I only believe stuff I can touch. Which is why I never take much notice of demos, especially Microsoft’s. If it hasn’t shipped it isn’t real.

  • John


    Your “assertation” is flawed. The word in common use is “assertion”.

    Webster’s Third New International Dictionary (1971) doesn’t contain “assertation”.
    The Century Dictionary (1895) says it’s an obsolete synonym of “assertion”.

    This sort of careless spelling is “something I will not stand for” coming from someone who might just be considered both pedantic and arrogant.

    Ah! It’s good to get that off my chest.

  • john.scully


    Fair enough, I can respect that sir.


    When I said “you wouldn’t buy it” I meant “you wouldn’t believe it”. I was not speaking of actually making a purchase, that was a miscommunication. With regards to my being “giddy” over WP7 I have said several times that I have little interest in owning a WP7 device. I simply admire what I see and appreciate the fact that it is an original and beautiful OS. Period. My being an iPhone owner does not preclude me from appreciating other technologies, much as Apple co-founder Steve Wozniak owns and loves both his Nexxus One and Droid Android phones.


    Oh, pardon me Jeeves for reading everything I had written and only pointing out my correct use of a single word that’s an obsolete synonym of the word I meant to say. Now if THAT isn’t pedantic, then I don’t know what is. Oh, and good job copying a half of your post word-for-word from 69Dodge’s 2008 post here: http://bit.ly/bKPJv1 . Though Wiktionary and Dictionary.com still have current validated entries for the word with no mention of it being obsolete, I will take 69Dodge’s word for it and use ‘assertion’ henceforth. Please thank him for me.

    PS: And while we’re being “pedantic”, my use of the word was not as you put it- “careless spelling”. It’s use was both grammatically correct and spelled correctly. You must have felt really smart when you typed that mess up–how’s your chest feeling now?

    Every single post of mine has been amicable and objective. I applauded Dan’s article in my very first post only pointing out an obvious mistake he made. I only once took exception to Dan claiming that I said something I clearly did not. And you have a problem with that? Get a life, please.

  • john.scully


  • http://blog.cytv.com cy_starkman

    @ Eric in London

    I do like your piece on patent law. It excludes an important point though.

    Patent laws and patents are not designed to protect innovators, rather those with the most money. Even if this is simply having your innovation written up in the “right way”, having it submitted, paying the right people to lobby on your behalf to make the application go through and finally in defending your patent.

    Our current system does not support innovation it supports massive scale in business. In that way it stifles innovation, threatens it.

    Furthemore, the right to have an idea has become an exlusive position based not on the idea, or the ability to concieve the idea but on financial clout. This is more stifling than the patent system. It creates a lock out.

    There was a time when having the idea and setting out to make it happen was enough but realistically unless you can also launch a global marketing blitz, swing a few billion to secure supply and even get an audience with potential suppliers, partners and channel, plus a few thousand employees there’s no point.

    Where I think we all suffer from this problem is in the quality of products that do get made. The iPhone for example is great and yet it’s really backward (not that there is anything significantly forward, or even at all, maybe just sideways), why?because it is the product of the few and can’t injest the ideas base available.

    There is simply no mechanism or protection for the value of idea itself anymore. The power of the best idea has been crushed under a legalized system of bribes designed to protect those who can pay them.

    I end by clarifying that my comment is not to do with HTC who have done the standard Asian manufacturer thing and ripped off others. I also highly doubt (unresearched) they have a patent portfolio of any merit.

  • enzos

    Joel (#31),
    It was the capacity of the Hydra’s heads to regrow* that Dan was drawing on. Cerberus had just two heads but neither displayed a known capacity for regrowth.

    * “… Hydra, that huge snake with nine heads, one of which could not be hurt by any weapon, and the others would grow again as first as they were cut off. Accompanied by his nephew Jolaus, the hero set out for Lerna in a swift chariot, and soon found the wooded hill where the Hydra kept itself hidden. Leaving his nephew beside the horses, with fiery arrows he fetched the creature from out of its hole, to swoop upon him, hissing and spitting from all its heads, that waved like branches in a storm. Undismayed, Hercules met its onset and mowed down the twisting heads one by one, yet as he cut them off two grew up in place of one, while it twined its loathsome body round his limbs and almost stifled him with its foul breath. He was then to call for the help of Jolaus, who ran up with a torch; then as Hercules shore off the bristling heads, his nephew seared each bleeding wound, so that they could not grow again. At last the raging Hydra was left with that one head no iron could wound; but he crushed it with his club, and tore it off and buried it in the ground under a heavy rock. In its poisonous blood the conqueror dipped his arrows, to make the hurt from them henceforth incurable.” (Greek Myths)

  • Joel

    Yes, that would make sense…!

  • John


    Touched you on a tender spot?

  • john.scully


    How would you have touched a nerve (I believe that’s what you were trying to say)?

    In trying to appear intelligent and put people down (which is all you have done thus far to other people in this thread–nothing of substance has come from you) you only ended playing yourself, something I was only to happy to point out, paying you back in your very own coin.

    Stop plagiarizing other peoples posts, put your dictionary down, get off your high-horse and contribute something constructive that is relevant to the topic. And if you have nothing to contribute that is on-topic then do not deride those who do, lest you end up putting your foot in your mouth again.

    Persist if you will, but this schoolyard dialogue with you is finished. You played yourself silly and I’m back on-topic.


  • http://www.ericperlberg.com Eric in London


    cy, my comment was about why IP law was set up and how it’s supposed to work. That there are unintended consequences which distort those intentions, I have no doubt. I take issue with your point that they were *set up* (ie their intent was) to protect people with money. Can you cite some evidence?

    I don’t have enough business background to know if your statement “There was a time when having the idea and setting out to make it happen was enough” is accurate to that extent that you’re saying there used to be a level playing field and today there isn’t. It strikes me as nostalgic and doesn’t ring true to me any more than the great American myth that anyone could come to America and with hard work and they could rise in wealth and class… That some could and did I have no doubt. That there once was a level playing field (sorry about the cliche, I’m only on my first coffee) and today that’s been ruined by patent law, to me, sounds like an idealised view of the past. But that’s just my intuition and perhaps your background gives you greater knowledge on this.

    In any case I wasn’t trying to defend patent law but explain it. It happens to be the law at the moment. Apple is using it. I engage in this discussion because of my personal belief that among the universe of existing businesses Apple is among the most innovative. That 2 young guys in a garage with a vision (the computer for the rest of us) set up a business in 1976 and today that business is the 4th largest corporation in America and growing rapidly does suggest that it’s not totally impossible for the small guy to make it a big success. Sergey and Larry are a more recent version of this.

    So how would you set up patent law? Or would you just get rid of it so that any big corporation could rip off the small inventor as soon as they got some traction? Let us know.

  • ReginaldW

    @Eric in London

    The purpose of a patent is to encourage innovation by rewarding the inventor with an exclusive period of time to either use the patent for their own production, giving advantage to that product over competitors, to license the patent to one or more others to include it in their products so that their products are improved or for any other reason that the inventor and/or patent owner so chooses. This is the basis of a patent and as far as I am aware (I am not a lawyer, nor involved in patents) has been so from whenever patents were first conceived. The only difference then from now might be the length of time a patent is valid for and that some things that might not be patentable before might be patentable now and vice-versa.

    The difference between now and then is that patents now are BIG BU$INE$$ and worth a lot of money. Microsoft, RIM and other companies have paid out big dollars for technology that was patented by others that they used without licensing it. Nokia, MPEG-LA and others have patents that they license to others for standards to be maintained while others will license their technology on an exclusive or non-exclusive basis simply to increase their revenue. Xerox PARC was set up to develop future (10 years) forward-looking technology, some of which they licensed, some they used in their own products and some they didn’t think was worthwhile that took on a life of its own after it left PARC. Some companies cross-license their patents to make better products, and as someone commented on another story on RDM, the auto industries in the first half of the 1900′s put their automotive patents into a pool to allow other auto manufacturers to use all the various patents to improve all automobiles.

    I remember reading or hearing about the person who invented cartridges for guns, who patented the idea. He was a monk/priest who didn’t like killing of people and refused to allow the military to use his patent, but did allow hunters to use his patent for game hunting for food. The military waited until the patent expired before they were able to use the modern bullet for warfare. No idea how true this is and I’m too busy and lazy to search for it on the net.

    I think some people want to have ALL of the technology that gets invented available to them from anyone and everyone and to let price and maybe quality be the sole factors in selling their products. They view an idea as something that once conceived should be available for use by anyone without any restrictions. That someone can lock up some piece of technology that others can’t use seems illogical for those who want to consume technology.

    For those who are in business though, competition is such that any and every advantage is to be used to make one’s company more prosperous than the others. If this means better customer service, a better product, a higher quality fit and finish, a cheaper price or exclusivity of features, then the business will use whatever tools are available to them. Patents, copyrights, trademarks, servicemarks and other LEGAL protections are simply tools that a business can use against its competitors. It doesn’t matter that the average joe or jane consumer wants all products to be identical in features, or cost or whatever.

    Apple in this case will use its patents to impede HTC and anyone else who might be treading on Apple’s patents to cease and desist doing so. It is to Apple’s benefit to do so and Apple will do what is in Apple’s best interest. To not do so, some shareholder could sue the company and/or management because they didn’t use due care, diligence or whatever the legal wording is, to maximize the companies profits or value.

  • ReginaldW

    @Eric in London

    “So how would you set up patent law? Or would you just get rid of it so that any big corporation could rip off the small inventor as soon as they got some traction? Let us know.”

    The difficulty in changing patent law is in the amount of money that exists because of the current situation. I think the majority of patents (I have no source, only what I seem to recall hearing, but no idea) are issued to large companies and these patents are used to compete for dollars from the consumers of those products it makes. Technology is getting more and more complicated that small inventors in the proverbial garage are less common or the types of invention they create are smaller in scale. Of course saying that will only have someone come along and create the next big thing that people can point to as an example.

    I don’t think there is much that can be done about patents, other than tweaks to the system. This might be extending or shortening a patent lifetime, ease/difficulty in obtaining a patent, types of patents available, etc.

    Copyrights have been extended multiple times to allow big media to prevent others from using text, audio and pictures in some format to keep feeding the big media engine. As those copyrights are about to expire, it seems the politicians go back to redo the copyright law to allow them to continue peddling the old media for a while longer.

    Big money will do what is required to protect itself. If one has enough money, they can use a patent/technology to implement or improve their product and worry about the costs later when they lose in court. Microsoft seems to have gone this route a lot, as they seem to have lost a LOT of lawsuits over their inclusion/misappropriation of technology.

    So, no ideas on how to change the patent system and I doubt you will get a lot of intelligent thought on it from most people. Those who complain about the current system are those who have lost a patent battle, have to pay a fee for use of someones technology or are unable to get some technology since it is patented and they don’t use a particular vendor who has the technology. Those who approve of the current system have patents to enforce either for their own use or to license to others or are involved with them or in the practice of law or the enforcement of patents. Those who want small tweaks are those who have something that is close to the line of the law and want the line moved just a bit so that they benefit from the change.

    It boils down to this. Is an idea worth money? I think it is, and the issue becomes who will profit from that idea and by how much?

  • http://blog.cytv.com cy_starkman

    @ Eric in London

    I wasn’t knocking down your write, extending on it’s consequences rather.

    As for an example, you gave your own. Apple is a garage. Fluff starting door to door. Many barriers to entry exist now but not then.

    Could you make a revolutionary development to the personal computer in your garage and then get to the next level by selling kits and boxes round local user groups and shops. Unlikely, building the 6 layer main board and the licensing costs to intel to use their chips and reference designs would probably end that long before the insignificance of selling 1000 computers ever did. Alternatively you could outsource the build (while still reeling from the licensing fees) to China, never see a product until some KIRF appears on engadget, unsueable due to China’s IP laws and the unaffordablity of international patents.

    As for “setup”, while not conspirital as such there is a big gap between back group discussions which make policy and the spin doctored public policy that gets delivered as palatable to the public.

    That said, i’d be pretty sure with no research that patent laws were not cried out for by two fellas down the road but some larger cash lobby powered fellas who owned a few roads. It’s only reasonable (vs dodgy underhanded)

    alternatives? A longer story not suitable for this thread

  • http://blog.cytv.com cy_starkman

    @ ReginaldW

    You only reinforced my point. Thanks though.

    If you read my comment it’s clear I’m not one of the “everything should be free” mob. Rather that the current system does not protect ideas and inventors but companies with money to pay to be protected. It also does not promote innovation not has it endeared the companies into behaving well or even being open to ideas.

    Your examples of cars and guns are good. More clear examples would be:

    Mercedes who patent safety technologies they invent in such a way that they can be used by anyone but are prevented from being locked up in the control of anyone. I understand their liceensing costs are minimal to promote safety in cars. This is a type of anti-patent

    And the Nobel Peace Prize founder who used the weatlth gained from his invention of dynamite to promote peace (or more recently just used promote mates) and various positive sciences.

    I personally draw an observation between laws and legalized bribes. Bribes protect position, laws (arguably) protect people and things. This may raise protest, but just because in India the local heavy might be honest in framing his request to let you run a cafe whereas the local heavy in New York might fluff about some papers excusing his right to be heavy and prevent you from running a cafe without paying him doesn’t make them different.

    Simplistic as it sounds and not the whole of my thoughts on the subject nor the only option nor an option that would improve the injesting of ideas by companies or allow ideas to spread without serious backing (few qualifiers to avoid the -pick apart- people) but simple none the less is..

    If patent LAW was about protecting ideas and the rights of the innovator then as an innovator with an idea you would walk in, the patent office would assist you and help you defend your idea using the laws at it’s disposal.

    That is opposed to how it really works. Which is pay someone to make your application to pay us for the right to pay someone else to defend you and oops over in that other country, nah sorry you have to pay someone else to write your application to pay another mob for the right to pay someone to defend you. Then of course f you are kinda broke after that or even if someone simply has more money than you there is no defense anyway and most likely if you dare try then you’ll get snuffed out (monetarially), lose your house and have your patent bought up by the offending party for a few dollars to your own lawyer to pay off your owings to them due to newly found bankruptcy for trying to defend your idea.

    That’s not about ideas and innovation. It’s about bribes and who has the most money.

    To further eradicate the -put down- commentors. I’ve not experienced that. Only observed it via our glorious newswire for decades.

  • gctwnl

    The rumour mill has it that HTC is looking at acquiring Palm. If so, that might have to do with Palm’s patent portfolio…