Daniel Eran Dilger in San Francisco
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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
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Inside Google’s Android and Apple’s iPhone OS as advancing technology
Inside Google’s Android and Apple’s iPhone OS as software markets


1 qka { 03.03.10 at 2:46 pm }

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.

A new high in purple prose and mixed metaphors!

Dan, you’re nothing if not colorful!

[I'm glad you enjoyed that : ) - Dan]

2 gus2000 { 03.03.10 at 2:53 pm }

Anyone doing the same thing over and over while expecting different results is obviously using Windows.

3 rizzior { 03.03.10 at 3:02 pm }

Great Job as Usual Danny Boy..

4 Raymond { 03.03.10 at 3:13 pm }

Ah what a refreshing change to read some common sense after the last two days of hysteria from the usual sources. It will be interesting to see if this law suit alone will dampen Androids adoption with hardware makers.

Though I’m not as confident as you that the Win Phone 7S is a direct copy of the iPhone.

5 HCE { 03.03.10 at 3:20 pm }

What exactly is Google “stealing and giving away to the Chinese” here? If you are going to make an all touchscreen phone, you have very few options. What could you do differently? I guess you needn’t put in specific gestures like pinch-to-zoom but it doesn’t look as if pinch to zoom was one of the patents listed in either of the complaints. Frankly, what would satisfy Apple? I think the real intent of the suit is not to get any specific concessions or money but just to slow down Android and Windows Mobile development.

Frankly, I’m disappointed at Apple. I regard the patent system as totally messed up and, as far as I am concerned, the only reason to have patents is for defensive purposes. I take a dim view of anyone who uses them offensively. I’m not denying that Apple came up with these technologies. That gives them the advantage of being first to the market and tremendous mindshare. Apple should make the most of this advantage and win in the marketplace rather than trying to fight in the courts.


6 ShabbaRanks { 03.03.10 at 3:28 pm }

At last, a good long read.

I’m sorry to say it but I’ve missed these.

Good work.

7 Mike { 03.03.10 at 3:35 pm }

as far as I am concerned, the only reason to have patents is for defensive purposes.

unfortunately, this is defensive, since Apple is trying to stop infringement. It’s not like they tried to sue the companies out of existence regardless of the validity of the patents, which they could have done. If you can’t see the difference between Apple trying to enforce its patents and Apple suing people, trying to make money or make them go away as competitors, you should probably study the subject a little more before forming an opinion.

As for the article, this makes perfect sense. Thanks for that, I was wondering why Apple picked HTC rather than Google.

8 Malatesta { 03.03.10 at 3:59 pm }

“…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)”

You can’t just say this and not make an argument to defend this position. It is not clear to me what exactly about Wp7 is modeled after the iPhone (a glorified app launcher model). Microsoft has a long legacy in “Metro” (the WP7 UI) that goes back to Windows Media Center and more recently the Zune HD. There is nothing about their UI that can’t be traced to their already existing UX.

So what exactly does WP7 steal from Apple? Multi-touch, which is not named in the suit?

Microsoft has 15+ other OEMs lined up for WP7 and the OS is not even out yet, leaving them *plenty* of room to adjust anything potentially infringing before release. Android is in a much more difficult position with their devices already in the market. With the Chassis 1, 2, 3 specifications from MS on WP7, HTC’s importance in selling Wp7 devices has been substantially lessened.

[Why don't you ask Steve Ballmer, who laughed at the iPhone in 2007 because it was "expensive" and "didn't have a keyboard," while touting the Motorola Q "Windows Smartphone" as a non-touchscreen, button oriented device?

At the time, he condescendingly said Apple would never get more than 2% of the global smartphone market, where MS planned to have 60-80%. Then WiMo imploded as the iPhone took off, and Android erased any market for even selling a mobile OS.

Or you could ask all the Windows Enthusiasts who spent the last three years complaining about the iPhone form factor and interface, only to embrace it once MS decided to drop its dead-end strategy and create an iPhone device with a UI that looks more like print than a usable mobile interface.

Perhaps you could have this conversation with yourself? Why was the iPhone so terrible right up until MS announced plans to replicate it as closely as possible? - Dan]

9 Ludor { 03.03.10 at 3:59 pm }

Good work, Daniel.

10 ulicar { 03.03.10 at 4:08 pm }

It is very funny when you accuse somebody of selective memory.

Apple sued Microsoft for the copyright infringement, that is right, but you forgot two things

1. Apple lost, not once, but two times (appeal as well)
2. Apple was sued for the same thing by Xerox, and Xerox lost because of the statute of limitation, not because Apple was right.

Now if that is not selective memory, I don’t know what it is. Apple froth, froth

[Thanks for inserting some of your trademark, random, irrelevant, and condescending frothing ulicar.

Apple lost its "look and feel" case in the early 90s because Sculley granted Microsoft a broad license to use certain Mac elements in Windows in exchange for keeping Excel Mac-only for a couple years. The court ruled that his agreement could be broadly interpreted to give Microsoft perpetual rights to those elements, even well after Microsoft ported Excel to the PC. The case was something Apple continued to appeal because the verdict was so unbelievably ridiculous.

By saying that "Apple lost," you seem to be selectively remembering the outcome without really being aware (or choosing to recall) that it was not because Microsoft didn't rip off the Mac interface, but because Gates had extorted an agreement that the judge determined should allow Microsoft to continue to copy Apple's work without any compensation.

Conversely, Xerox' case was indeed thrown out due to having been filed too late to matter, but that does not mean Xerox would have prevailed or that it even had a legitimate case.

But thanks for sharing your wildly contradictory take on things as usual- Dan ]

11 dchu220 { 03.03.10 at 4:17 pm }

It’s also easier to set a legal precedent by suing a company that doesn’t have a large IP portfolio. (But I’m sure everyone has read that already).

I wish Apple good luck.

I get really frustrated with all the comments from people saying that Apple is trying to kill competition with this move. If you’ve ever owned a business, you would understand. Ideas are easy. Executing and implementing new ideas is very hard. Compete by making something different from me. Not by copying me and undercutting my price.

12 Apple Inc. v. HTC: Day 2 « Android Junkies { 03.03.10 at 4:17 pm }

[...] analysis from Roughly Drafter's Dan Dilger. It's good. And very, very [...]

13 Malatesta { 03.03.10 at 4:41 pm }

@dchu220 You’re assuming Apple has a valid case and is in the right/know their motives. That is just as disingenuous as those saying that Apple is only doing this to silence competition.

In my opinion, Apple won’t get very far with this case as those patents are to broad and vague.

14 broadbean { 03.03.10 at 5:36 pm }

“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”

Gold. :D

Would be interesting to see how this all pans out.

[I'm glad you enjoyed that : ) - Dan]

15 Malatesta { 03.03.10 at 5:42 pm }

“Perhaps you could have this conversation with yourself? Why was the iPhone so terrible right up until MS announced plans to replicate it as closely as possible? – Dan”

Once again you are dodging and/or are being disingenuous. What *exactly* about WP7 copies the iPhone? By not focusing on “apps” , Metro is about as far as a different paradigm as you can get from the iPhone.

[You're right that the app presentation copies Palm's WebOS more than the iPhone (because at this point, the only way to compete with the App Store is to say you're not competing!), but the design and form factor and everything else about WP7 is taken from the iPhone, not anything original.

Fascinating how people can say that the iPad is nothing new and then hail WP7 as some breakthrough. - Dan]

I see no similarities between the the UI design, execution, organization, graphics, fonts and user interaction. In fact, they purposefully distance themselves from the increasingly boring and outdated iPhone model (phone = 1 big app launcher) as demonstrated here: http://tinyurl.com/yd5upd6

[Yes, the WP7 fonts look more like the Zune. But that's not where innovation lies. Come the F on. ]

If you could, pretend you are Apple’s lawyers and with bullet points and detail, indicate what technology, design or influence Wp7 stole from the iPhone. And capacitive screens don’t count (not an Apple innovation).

I’m looking for specifics, not what Ballmer said in 2007 (irrelevant), what the WinMo community pontificated on (also irrelevant) or what people predicted for the iPhone (yes, that is irrelevant too).

[If you think recent history is irrelevant, then it's probably going to revisit you shortly and you won't even realize why it's happening. Sort of like the mainstream tech media. Keeps me busy! ]

16 confluence { 03.03.10 at 7:03 pm }

LOL. really? The Windows vs MAC thing? Didn’t Gates purchase DOS for $100,000. Someone correct me if I’m wrong. Also, didn’t “the Great Steve-O” back then say something about Microsoft Windows-that because an application is in a “window” that it was infringing apple’s software. ROFL.. so what Apple is saying today is that Google is stealing Apple’s iphone “experience” because they are making the web easy to access from a phone like the iphone. And you are comparing this to Windows? Windows is where it is at today because it’s like Apple. It is here today because it is unlike Apple. So agian your claim is: Microsoft stole Macintosh’s pc “experience” because Microsoft uses windows to display their applications.

[Congratulations, everything you said was completely wrong to an absurd degree. I can't even finish - Dan]

Apple is attacking HTC because it’s the best phone manufacturer outthere. Apple simply wants you to keep having no other choice in who your manufacturer is. They want to fuse their own batteries to their phones. They want you to buy only mac parts for your computer. And they want you to use their software. And Google is evil how? Because they are letting you choose your manufacturer, they are letting you swap your battery, and they are letting you access to the web how you want to do it. Not how Apple forces you to.
Android = Windows in that it will one day surpass Apple’s software by sheer numbers. Windows was able to beat Apple by making things easier for the user software wise and hardware compatability wise. Android will beat iphoneOS because they are making it easier and cheaper to own a smartphone. If you want an iphone, you must go through aT&T, and you are stuck with the same looking phone.. If you an android phone, you can choose from EVERYONE. You can choose from ANY style (qwerty or touch). If you want a battery for your phone or a headset, buy it from ANYONE.

17 npodges { 03.03.10 at 7:38 pm }

Apple’s iphone patent portfolio is a garbage. The “revolutionary” patented elements — screens that rotate with device orientation, and multitouch interaction — had all been demonstrated before in prior art. This is just apple trying to stifle competition. All major mobile devices are going in this direction. It follows naturally from having high resolution screens and powerful processors in mobile devices. This is lame and pretty much everyone is seeing it as lame.

[Neither screen rotation nor multitouch are the subject of the patents involved here. I suggest you look at them, as they are involve both technical OS details and unique UX elements that are non-trivial.

One can make convincing arguments that the patent system is pretty much a mess and needs reform, but suggesting that the solution is to have Apple paying out millions to patent trolls (as it regularly does) while also being castigated for patenting advanced technology and then seeking to enforce those patent rights (as it has a responsibility to do for its shareholders) is neither rational nor convincing - Dan ]

18 ReginaldW { 03.03.10 at 7:39 pm }

The management of Apple has a right and a duty to the shareholders who own the company to pursue those who infringe on Apple’s rights and property. Failure to do so could lead to lawsuits against the management of Apple.

Whether you believe the patents are valid, whether you believe that software and/or interface patents should be issued in the first place is irrelevant. If you don’t like the system, fight to change it, but you will be fighting against those who have patent rights and the money power they entail to protect.

If Apple wins, they will better control the smartphone market. If they lose, it may invalidate some or all of the patents in question, meaning that others can use the technology for their products. It might shed light on the patent process and may cause future changes on what can be patented. Only time will tell what the final results will be.

In the mean time, the lawsuit may or may not slow down Android and Android vendors as well as other mobile vendors. It may cause the various vendors to change their products and create new innovations that may be better or just different from the iPhone.

The danger for Apple, besides the potential loss/invalidation of patents, is to lose focus on innovating and developing new products and updates to existing products. I don’t see this happening though. Apple went through the Psystar court battles and goes through multiple law suits every year. It is just part of being a large company with a big bank account. The big bank account just allows for a better set of lawyers and in a lengthy battle, allows them to not worry about the costs.

19 Malatesta { 03.03.10 at 8:03 pm }

“You’re right that the app presentation copies Palm’s WebOS more than the iPhone”

For one, I can’t be right on a claim I did not make nor infer. Don’t put words in my mouth, that’s just dishonest. Number two, like the iPhone didn’t lift the simple “home page featuring a list of icons to launch applications” from Garnet? Come on. Number three, no WebOS has a very different app launcher and paradigm for multi-tasking than Wp7. WP7 and WebOS are apples vs oranges. If you can’t see that then you paint in too broad of strokes or are just demonstrating your ignorance of the mobile OS world. Either choice does not reflect on you very well.

“but the design and form factor and everything else about WP7 is taken from the iPhone, not anything original.”

What form factor? The “phone” at WMC was not a phone but a generic, unbranded Asus developer unit which won’t ever be released. The LG device demoed on Engadget’s show is more like the LG eXpo with a slide out keyboard, a design that HTC first pioneered, not Apple.

And what is the difference between “design and form factor” that you speak of? Apple has 2 buttons (counting power), WP7 mandates 5 (counting power). Wp7 is going to be form-factor agnostic (hence the 3 different chassis specifications by MS), which is the opposite of Apple in the extreme. Do you even really follow Windows phone news or do you just use talking points?

“Yes, the WP7 fonts look more like the Zune. But that’s not where innovation lies. Come the F on. ”

Who said anything about innovation? We’re talking about what has Microsoft allegedly (by you) ripped off from the iPhone with Wp7. Whether you *like* Metro (who’s UI design and influence goes back to WMC in 2005, aka pre-iPhone) is irrelevant to the discussion, nor have I weighed in on the issue for you to respond. So yeah, straw man on your part.

“If you think recent history is irrelevant, then it’s probably going to revisit you shortly and you won’t even realize why it’s happening. ”

The talking points you bring up aka “recent history” is irrelevant *to our discussion on what you allege Microsoft has stolen from Apple in regards to WP7*, not in a philosophy-of-life manner.

Come one Dan, you’re smarter than this. You accuse “other sites” of speculation, trolling for news and generally lament the poor journalistic standards of “other sites” when you are doing the *exact same thing* when you claim that WP7 steals from the iPhone. When asked for specifics, you fall back to re-hashed talking points and sound like an Apple enthusiast as opposed to a neutral party, weighing in on the issue.

If you don’t know this history of the Metro UI, or are generally unfamiliar with the WP world, no harm no foul. But don’t lob claims of patent infringement, stealing ideas, or ripping off devices without being able to substantiate or back up that claim.

[I thought I made it pretty clear. Ballmer said the iPhone was a mistake in 2007 and pointed to WiMo devices like the Q. Now Microsoft is dropping Q-like form factors to emulate the iPhone, with a few poor decisions serving as differentiators. It's like Win95 all over again, except that MS doesn't have an existing DOS monopoly in phones to leverage. So really, it's like the Zune taking on the iPod. How well did that work out? - Dan ]

20 bigbadrobbo { 03.03.10 at 8:07 pm }

Nice oblique reference to your question at the shareholders meeting!

21 tmay { 03.03.10 at 8:44 pm }


I like to think that this is analogous to exercises by the world’s navies to assure freedom of navigation in international waters, or a pitcher’s brushback to a batter. If you don’t exercise patents, then they are just words on paper gathering dust, but exercising patents also has great risk. I agree with you that this is all timed to get the maximum effect with the minimum risk.

Frankly, the bulk of the buying public isn’t concerned by any of these patent actions. This is geeks getting their panties in a bunch. I would argue that this is timed to occur before the release of the iPad to demonstrate that Apple is in fact the premier mobile innovator. Probably see another beatdown of Flash, and another couple of shots to Amazon’s music and ebooks market. All fairgame I say.

What the public cares about is track record, and Apple has a very, very good track record.

22 ulicar { 03.03.10 at 8:58 pm }

@Dan “By saying that “Apple lost,” you seem to be selectively remembering the outcome without really being aware (or choosing to recall) that it was not because Microsoft didn’t rip off the Mac interface, but because Gates had extorted an agreement that the judge determined should allow Microsoft to continue to copy Apple’s work without any compensation.”

You claim MS ripped of Mac, law claims they did not. Whom should I beleive? Thank you for the offer, but I will stick with the law. No hard feelings. :)

“Conversely, Xerox’ case was indeed thrown out due to having been filed too late to matter, but that does not mean Xerox would have prevailed or that it even had a legitimate case. ”

As I said, Xerox lost because of statute of limitation, not because Apple was right :) We will never know. Actually I know. Apple would win, because it lost against Microsoft on the same matter. Microsoft won not just because of some contract (that is what you think), but because, as the verdict says, to sue somebody for the copyright breach, you must use the whole system, not just what you deem appropriate. You are not allowed to copyright letter ‘A’ (what Apple wanted to do), but you are allowed to copyright the sentence that contains letter ‘A’.

P.S. I think your editing of the comments posted by me, and others is a copyright breach. I do not have to register them to get copyright, which is assigned to me automatically, and I did not assign my copyright to you when signing for the account. If you cite me in another comment, that is called “fair use” and you are allowed to do that.

23 gus2000 { 03.03.10 at 10:29 pm }

Dan enjoys a good bit of hyperbole in his writings. When he says that MS “stole” from the iPhone, he does not mean they literally took their IP. They’ve simply fired up the photocopiers to make a “me-too” product with a handful of differentiating yet dubious features.

Look at what they added to the Zune: “squirting”, and HD Radio. Whatevah. It hasn’t helped get the Zune off the discount rack.

WinMo has been a brain-dead interface from the beginning, since the desktop metaphor on a 2-inch screen is ludicrous. MS is willing to throw their stylus/keyboard UI under the bus now that Apple has already blazed the trail and proven that it’s not only possible but preferable. And in that respect, MS has “stolen” the idea from Apple. Again. Color me surprised, not.

However, that is completely different from misappropriating a patented technology. Patents exist to foster innovation by allowing development effort to be rewarded for a period of time. Without patents, R&D investment would be discouraged since intellectual property would become public domain the moment a product was sold.

How much of copying patented technology should be allowed before a lawsuit is considered OK? What is the point of even having Intellectual Property if competitors are are free to copy any and every innovation out there?

Apple doesn’t want to end competition…it just wants competitors to come up with their own innovations instead of blatantly ripping off the very features they were initially mocking.

(Personally, I think Apple should enforce but license the patents so that other phones don’t need to *slightly* change up their interfaces just enough to confuse those trying to use both. Anyone who uses both OSX and WinXP knows that the UI differences, such as locating the window control buttons in opposite corners, or using “Recycle Bin” instead of “Trash”, can be thoroughly maddening.)

– Gus (troll-free since ’93)

24 gctwnl { 03.04.10 at 2:20 am }

The problem with most commentaries about this is that the whole software patent arena contains both protection-worthy inventions and sometimes almost laughably idiotic simplistic methods, like “the use of XOR to write a cursor on screen” from before the GUI or the “one-click purchase” from the start of internet commerce. Those patents are like patenting the use of a wheel to steer a car.

Arguments for and against Apple’s right to protect its intellectual property cannot be made broadly, covering both ends of the software patent spectrum, the complex and the trivial.

No protection at all is opening the door to so many free diers that there is far less incentive to invest in innovation. Too much protection stifles innovation in other ways. An easy to find sweet spot in software patents is hard to find and would at least require massive know how on software engineering at patent offices to judge ‘triviality’).

As for Apple’s patents thrown in, some of these are either trivial (e.g. using a gesture on a touch screen to unlock a phone) and some are somewhat more complex, but still ‘the only way to do it’ (as in separating a program in two ends, a front and back end where the front end can stay responsive while the back end seperately delivers output while running a task). This is a basic mechanism employed by many apps (including one I used to ship as freeware on Mac OS X). There are also patents for something basic like publish/subscribe in events (Appkit’s NSNotificationCenter would be covered by this).

Apart from protecting inventions that requires serious work to achieve, patents are also used to protect innovations that are more the ‘a ha’ like inventions. The sudden light bulb where you think of something brilliant but simple. Though being the first to think of some design thing must be worth something (you have to seriously invest in hiring the right people to get results like these), I wonder if such inventions would require the same level of protection as inventions that require long years of work and millions of investments. The question is difficult to answer.

25 gctwnl { 03.04.10 at 2:22 am }

“free riders”, not “free diers” (hard to guess what went wrong in my brain wires typing that).

26 gctwnl { 03.04.10 at 2:29 am }


“You claim MS ripped of Mac, law claims they did not. Whom should I beleive? Thank you for the offer, but I will stick with the law. No hard feelings. :)”

Something can be copying in one sense, but not in a legal sense., if for instance the copying is covered by a license agreement. In fact, a legal sense always talks about “legal” vs. “illegal” copying.

Hence, what the law may say something about is not just the copying but above all the legality. If the law says “This is is not illegal copying”, it can both be legal copying or just not copying at all. If the judge said that the agreement between Apple and Microsoft covered what Microsoft did, the law in fact said: the copy was legal.

That still does not prove that it was copied, but to be honest, in this case, the fact that it was copied was never disputed, it was the legality that was disputed.

27 olambo { 03.04.10 at 2:30 am }

“The danger for Apple, besides the potential loss/invalidation of patents, is to lose focus on innovating and developing new products and updates to existing products”

For some reason this brings up an image of Apple’s Lawyers stopping their legal actions and getting back to their previous work on developing the next great iphone OS enhancements :)

28 gctwnl { 03.04.10 at 2:56 am }

It is of course not lawyers developing innovations, but Apple’s strong focus on innovation (especially at the top) will be less if the focus on litigation grows. If that is a bad thing, I don’t know. For users, in the short run certainly. For stockholders, in the long run maybe.

29 confluence { 03.04.10 at 4:01 am }

Jobs was quoted by Fortune Magazine’s Brent Schlender back in 2005 of what he thought of the OS,codenamed, Windows Longhorn:

‘They copied the original Mac with Windows 95,’ Jobs gloats, ‘and now they’re going to be copying us again,’”

source: http://macdailynews.com/index.php/weblog/comments/4950/

I may not remember everything perfectly but I did recall Jobs whining and crying about Windows 95 back in the 90′s. This interview from a few years back has him re-stating the statement again.

I can never remember it exactly. This is why I had to look it up.

Every few years or so Jobs will have himself in the headlines crying about microsoft-this or windows-that. And every few years it all sounds the same to me: “mommy! mommy! make them stop copying me! I copied it first!”

Again, don’t remember it perfectly but if

“everything I said was completely wrong to an absurd degree”

make sure to check um… history before saying that about a person’s recollection. It maybe absurd to you but it was more absurd to me when I read that in a newspaper some 15 years ago. And it’s absurdity is probably why I still remember it.

And so if my recollection of Jobs saying that Microsoft copied the Macintosh’s idea of using a window to display an application is absurd to you, just wait ten years from now… Jobs will have his head in jar or his brain attached to a robots body complaining about our robots operating systems. Then some guy will bring up the time when Apple tried to sue HTC and know-it-alls like yourself, DAN, will say to that person,

[Congratulations, everything you said was completely wrong to an absurd degree. I can't even finish - Dan]

Read the interviews from this dimension’s history, Dan. Not the ones in your huge conceded head.

30 mailjohannes { 03.04.10 at 4:26 am }

“[Thanks for inserting some of your trademark, random, irrelevant, and condescending frothing ulicar.

Apple lost its "look and feel" case in the early 90s because Sculley granted Microsoft a broad license to use certain Mac elements in Windows in exchange for keeping Excel Mac-only for a couple years. The court ruled that his agreement could be broadly interpreted to give Microsoft perpetual rights to those elements, even well after Microsoft ported Excel to the PC. The case was something Apple continued to appeal because the verdict was so unbelievably ridiculous.

By saying that "Apple lost," you seem to be selectively remembering the outcome without really being aware (or choosing to recall) that it was not because Microsoft didn't rip off the Mac interface, but because Gates had extorted an agreement that the judge determined should allow Microsoft to continue to copy Apple's work without any compensation.

Conversely, Xerox' case was indeed thrown out due to having been filed too late to matter, but that does not mean Xerox would have prevailed or that it even had a legitimate case.

But thanks for sharing your wildly contradictory take on things as usual- Dan ]”

Excellent Daniel, it’s a gift to be able to think well and to be able to write it down properly.


31 Joel { 03.04.10 at 6:18 am }

Great article. One nit-pick. “A two-headed Hydra…” AFAIK Cerberus would would be better since its commonly depicted as having two heads.

32 ChuckO { 03.04.10 at 7:15 am }

The steering wheel analogy is a great one but not for the example you were using it for (I think). The steering wheel and many inventions only seem obvious after someone FINALLY introduces it. Whoever first put the steering wheel and three pedals and a shift design out there deserves compensation for that idea it’s genius and there were plenty of other crap implementations out there before it.

33 John { 03.04.10 at 7:25 am }


A name of three syllables (as in ulicar)!

“Conceded” also has three syllables.

I hope you don’t think I am too conceited by pointing out that “conceded” would read better as “conceited”.

34 gctwnl { 03.04.10 at 9:00 am }

I think for steering wheels on an axel, there might have been two implementations, with a handlebar (like a bicycle) or a wheel. There is not more you can think of.

Maybe a better analogy would have been the layout of the pedals. Today’s standard layout (clutch, brake, gas) was first invented by Cadillac. There were many other arrangements for speed shifting and such (if I recall correctly, the Model T, succesful as it was had a fairly dangerous and difficult to manage setup)

35 Per { 03.04.10 at 9:33 am }

The recent influx of trolls in the comments is interesting.

I just hope that Apple’s lawsuit is about the specific implementations, not just ideas.

With the media as a whole, there’s a need for a narrative and a good plot. The less you know about a company, the easier it gets to get imaginative. The psychological needs haven’t changed at all through the ages, we still want evil tyrants to lose epic battles against the white knight in shining armor. Even within the Apple community there’s a wish that Apple doesn’t get too big or too powerful because then Apple might turn evil. Microsoft has sort of given us the pattern of what happens to companies when they grow big. To some Mac bloggers the once idealistic prince of Cupertino has turned into an evil king.

36 berult { 03.04.10 at 10:02 am }

Can the debate based on words and numbers be winnable in ‘the computing world vs Apple’?

The power of ubiquity generates the user experience: the Microsoft-Google-Adobe-etc mindset and business model.

The power of the user experience generates ubiquity: the Job-Apple mindset and business model.

The former is addictive, the latter liberating; they are irreconcilable in their dynamics and mutually exclusive in an evolutionary timeframe.

[Thanks, that was brilliant : ) - Dan]

37 Eric in London { 03.04.10 at 11:30 am }

2 points:

As an artist I can verify that great artists steal ideas from other artists. This shouldn’t be confused with plagerism. We all learn from the masters before us. It was one thing to study how Rembrandt (for example) used dark and light to great effect and to use that effect yourself as for example what Ralph Gibson or Bill Brandt did later in photography. IMO what Google has done is to plagerise iPhone OS. The intent of Gibson or Brandt was not to simply create a Rembrandt copy that they could sell for a great amount of money claiming it to be Rembrandt like. Their INTENT was to create something uniquely new based on ideas that Rembrandt developed. This point has sorely been missing in the raving about SJ’s comments about stealing.
2) I think that the reason Apple went after HTC rather than Google is that going after Google would have left all the worries about producing Android phones down to Google. By going after HTC Apple served notice to every phone manufacturer that adopting Android could bring a law suit against them too. As pointed out above, the purpose of Android was not to offer a free open source OS for the masses but to protect Google’s at risk advertising business. IMO Apple choose the most effective way of putting a damper on the Android bandwagon by going after the phone producer rather than the OS producer.

I’m a bit bemused that the arm chair experts on the web think they have a better grasp of the situation than a team of top quality lawyers working for Apple.

I’m also bemused that Apple is being targeted by the arm chair experts as the company about to stifle innovation. Talk about blaming the victim. No matter, Apple does continue to innovate better than almost any company in the world and if it loses a few customers due to the fracas du jour it won’t add up to much. Most people haven’t a clue about what’s going on, they only know they like Apple products more and more by the day. The rest of these burning issues that we techies follow is lost on them.

38 Malatesta { 03.04.10 at 12:31 pm }

@Eric in London

” IMO what Google has done is to plagerise iPhone OS.”

“I’m a bit bemused that the arm chair experts on the web think they have a better grasp of the situation than a team of top quality lawyers working for Apple.”

So you’re entitled to your opinion, but others are not on the same issue?

Tell me: where in the lawsuit does it mention “Android” by name? Or perhaps it is WP7, as Dan believes (but can’t provided evidence)?

Or maybe the patents are violated with HTC’s Sense UI, found on both their Android and WM6.x devices? And that is why Apple is suing HTC, over what Sense UI does (e.g. gesture navigation, dimming of the screen in a call, fading of music, gesture unlock, etc.)

Just because Apple lawyers bring forth a case does not mean they know it is right. Arguments from authority have no place in serious debate.


“They’ve simply fired up the photocopiers to make a “me-too” product with a handful of differentiating yet dubious features.

Look at what they added to the Zune: “squirting”, and HD Radio. Whatevah. It hasn’t helped get the Zune off the discount rack.”

“. MS is willing to throw their stylus/keyboard UI under the bus now that Apple has already blazed the trail and proven that it’s not only possible but preferable. And in that respect, MS has “stolen” the idea from Apple. Again. Color me surprised, not.”

This is so vague. Wp7 has the ability for hardware keyboards as evidenced by the recently demoed LG device. There will be sliders, “black slabs” and yes, they have not ruled out front-qwerty devices either (expected with Chassis 3 specs).

Zune HD was not about competing against the iPod. Microsoft has said as much and that they were not attempting to dominate that market. It had two purposes (1) demonstrate MS can do really compelling hardware and UI (2) offer competition and an alternative in the market.

I love all of this “Apple wants to compete!” stuff and then when Microsoft releases a compelling product (Zune HD) they catch crap for it like “why even bother!, iPod rules!”. That’s a bunch of crap. Choice is good. Don’t knock it just because it’s not your guy offering the alternative.

And Apple did not invent the easy-smartphone or pda. They failed with the Newton and copied Palm’s Garnet OS (icon based app launcher with multiple screens). So if you’re going to throw this “Microsoft copied Apple” (even in a loose sense) you have to acknowledge that Apple lifted quite a bit from Palm Garnet and then improved upon it.

In this case Apple did not invent the wheel.

“I thought I made it pretty clear. Ballmer said the iPhone was a mistake in 2007 and pointed to WiMo devices like the Q. Now Microsoft is dropping Q-like form factors to emulate the iPhone, with a few poor decisions serving as differentiators
So really, it’s like the Zune taking on the iPod. How well did that work out? – Dan”

And I thought *I* made it clear that WP7 is form-factor agnostic: black slabs, sliders with keyboard, and yes, eventually front-qwerty types.

Look at the new LG phone with WP7: slider keyboard, design patented by HTC. That steals from Apple how?

Did RIM copy Palm with a front qwerty? Did Motorola? Or vice-versa?

And a few differentiators?

The whole Metro paradigm is different from the iPhone: hubs instead of applications; social networking at the core, integration with XBox gaming, centralized media, text (not icon) based, ability to actually customize the home screen, selective preemptive multi-tasking. (including 3rd party programs).

None of that is found in the iPhone.

You need to really get out from your Apple bubble and learn what you are talking about. Just because a phone is black and shiny doesn’t make it an iPhone.

As far as the “Zune taking on the iPod” I address that above. In short, competition is not a bad thing and you shouldn’t discourage it (not all of us think the iPod or iTunes is the bees knees), and the Zune HD was a critical success. Also, how hard to MS even push the Zune? They weren’t trying to dislodge Apple.

The whole thing was an experiment for WP7–it allowed them to test the waters without admitting they were doing so.

39 ChuckO { 03.04.10 at 12:34 pm }

It doesn’t make any sense to go after Google. They didn’t do anything. Physical phones implementing Apple’s IP are what you sue for obvious reasons. Apple would have sued Google if it made sense. These are companies, they don’t run into each other at church. They have to enforce their IP patents or else THEY DON’T HAVE ANY! You either license them or enforce them legally. The only other option would be if Android had IP Apple wanted to use they could leave each other alone but Android DOESN’T it’s just a copy of the iPhone. There’s no important innovation.

40 Eric in London { 03.04.10 at 1:37 pm }

“So you’re entitled to your opinion, but others are not on the same issue?”

I think you need to check with a dictionary and find out what bemused means. For your benefit and to save you some time it means confused or puzzled by. So if I say I’m bemused by something it doesn’t mean that I should be allowed my opinion but others shouldn’t be allowed theirs. It means I’m confused and puzzled by their opinion. As for example: I’m bemused by your comments about my post.

you again:
“Tell me: where in the lawsuit does it mention “Android” by name? Or perhaps it is WP7, as Dan believes (but can’t provided evidence)?”

The suit is against HTC so it doesn’t mention either Android or WP7 by name. However, I’ll quote from just one bit of Engadget’s analysis here:

Patent #6,424,354: Object-Oriented Event Notification System With Listener Registration Of Both Interests And Methods

This one is actually quite interesting: it’s from 2002 and is illustrated with drawing from Mac OS 9, but it covers event notifications passed among objects — a system specifically described in the abstract as presenting a context-sensitive menu on the screen. That’s very much the core of the Android UI, if you think about it. We don’t know exactly what Apple thinks HTC is infringing with this patent, but it’s one to keep an eye on, since it could have huge implications.”
end quote from Engadget.

you said about my post:
“Just because Apple lawyers bring forth a case does not mean they know it is right. Arguments from authority have no place in serious debate.”

My argument wasn’t that Apple’s lawyers have brought a case and therefore it must be correct. My point that you’re referring to was about Engadget’s (among others including zdnet and several others that I’ve read today) overly glib (IMO), overly derisive (IMO) attitude in their “breakdown” of Apple’s patent suit. Statements like this at Engadget:

“The year was 1998, and times were lean in Cupertino. Steve Jobs had just returned to Apple, and although the company’s fortunes were turning with the introduction of the iMac, it was clear that a true breakout was needed. “We have the answer!” cried William A. Garnder and Stephan V. Schell, two of the company’s employees. “We’ll develop an an apparatus for extracting a signal of interest from a plurality of spectrally and temporally overlapping input signals containing digital data having a bit rate!” Years later, this patent would thoroughly confuse a young lawyer simply trying to make sense of this mad, mad world.”

That is typical of Engadget’s “legal analysis” and it is nothing more than froth.

I wasn’t arguing that if Apple does it, its correct. I was arguing that comments on certain web sites implied that the blog writers had a greater appreciation of the legal issues than Apple’s legal team.

41 wwiwilson { 03.04.10 at 4:35 pm }

I think the iPAD arrival is another reason for Apple going now. What’s to stop some company cloning the iPAD hardware and sticking Android on it? Again a premium product would be up against a good-enough one. If the iPAD is really Apple’s idea of a future beyond the Windows/Mac PC stalemate, then they want to stop Google becoming the next Microsoft in this area. Apple has done the hard work, it should defend itself as much as possible within the law (something Microsoft can’t seem to do).

42 ulicar { 03.04.10 at 5:05 pm }

@Eric in London
Patent is a two bladed sword, and most of IT is actually not that keen on them for a couple of reasons. It is quite easy to get the patent on something, even if the issue in the patent was not patentable. And it is quite annoying and wasteful to fight off unenforceable patents lawsuits. I am not a patent lawyer, but I am a IT expert, and I can say, from a quick look into this patent, that it will fail, and for two reasons, it existed before (prior art) and it is quite obvious(not patentable).

To see what I am talking about, you need to know OO and a bit of history of IT. What they are talking about here is (from what I can see) Observer Pattern with slight (obvious) changes. http://dofactory.com/Patterns/PatternObserver.aspx Observer pattern existed long before Apple lodged the application for this patent. Patterns are quite important in the world of OO and they are not patentable. Unless you invent something new, but even than I think patent must involve a “object” change.

It might be voodoo for a nontechnical person, but for a technical person it is quite obvious what they are doing. They are actually using terminology (event, event listener) which is in the core of event driven applications http://en.wikipedia.org/wiki/Event-driven_programming and because event driven programming existed before, not really patentable.

Again, I am not a patent lawyer, but this patent IMHO is not enforceable. Other patents might be, but this particular one…

43 Eric in London { 03.04.10 at 6:02 pm }

I’m pleased that you’ve polled all of IT and have results on their attitudes towards patent law. You’re ahead of me on that one, I only know what I’ve read.

I think I’m understanding you correctly that your post is telling me your interpretation of the viability of one of Apple’s patent claims which I mentioned in my posts above? If so, I would point out that I have no particular attachment to either of these patents, only that I did a quick Google and grabbed the first that seemed pertinent. My point’s were specific to the commenter who questioned something else I had written.

It seems to me that implicitly you’re saying that even with your limited knowledge of the law (though I grant you without challenge your expertise in “IT”) that it is totally obvious to you that Apple’s legal department are wildly off the mark, which suggests that they don’t know beans about their business. Maybe you’re thinking their just a bunch of attack dog legal wonks who ply the law and will blindly give in to their paymaster’s whim? I don’t know, I shouldn’t put words in your mouth. But you feel, because you are an expert in IT, that you can see right to the heart of the legal part of the case because its obvious if you know your “IT”? And these lawyer wonks clearly don’t?

See that’s the bit I have trouble with. I make my living off of Apple doing well. My cart is hitched to their star. You may think that makes me a fanboi but I’m much too tightwadded to put my entire life earnings and future viability in the hands of idiots. I may have most of my eggs in one basket but I guarantee you I watch that basket damn closely. I spend a lot of time researching and learning about Apple beyond the screaming headlines and innuendos of Engadget and Slashdot. I study the economics and I study the people who make the decisions.

And what I know is Apple is one of the most ruthlessly self-demanding firms in the business universe. I also know that quarter after quarter they deliver the business goods. I also know they drive innovation on a scale that maybe no other company can match. I also know they take more risk than most companies. I also know that they make special efforts to hire and retain really sharp clued in people. I also know they don’t tolerate failure or fools. I also know that more than most companies or even people I’ve met that they do what they think is right and are willing to suffer the consequences.

So when you make things so cut and dried that a Wikipedia article is one of your 2 key points I think to myself, “Does the Apple that ulicar is positing in his argument dismissing this patent point sound like the company you know?” Would the Apple you know tolerate a legal department which came up with a major law suit in which 1 of 20 key legal challenges boiled down knowledge of a wikipedia article and a .net reference page? Could they be that clueless?

Surely I think to myself, “surely” (and I admit, I could be wrong because you never know for certain anything), “surely” I think to myself, Apple legal has thought this through a wee bit deeper than what ulicar is suggesting here? Yeah, I think so.

Anyway, that’s been my basic point. I don’t have any more insider knowledge, legal knowledge or IT knowledge than the next guy who works for a living. But when I hear an argument I want it to fit in with the facts as I know them. And your explanation to me here doesn’t fit the facts that I know. But I’d be happy to join you for a couple of flat whites and chat the hours away.

44 ulicar { 03.04.10 at 6:44 pm }

@Eric in London

I did not poll the whole IT, but I am in IT and I do follow all the happenings in the IT pretty closely. That is why I say “most of IT”, which is obviously not “all of IT”. The problem with patents in IT is that you might violate somebody’s patent, without actually knowing the patent exists. That is why I do feel, and most of IT, that patents in IT are actually wrong. This particular patent is one of those that exists, but are not known and Apple can and obviously will use it to attack others, who have no idea somebody filed a patent to event driven programming, but is this patent enforceable is a different story all together.

To put the patent issues in IT into perspective, check for instance how Microsoft tried to patent something that existed http://blogs.zdnet.com/Burnette/?p=246&tag=col1;post-245 .They claim it was an error (a honest mistake), to try to patent something that exists, and I give them a benefit of a doubt. Somebody did a stupid thing somewhere in the chain. The same might have happened to this apple’s patent, or maybe I do not understand it, it is full of legal talk. As I said, I am not a patent lawyer, but there is one obvious possibility if this patent is not enforceable how it might have happened. Somebody in Apple made a mistake.

So I do not claim any of things you try to insinuate I do, I am just saying what I see in this particular patent that you mentioned. I would appreciate if you did not try to put words in my mouth.

As I said, the event driven development existed before even apple existed, so to make it easy on you, you don’t have to follow links I provided you with. Nobody is forcing you to. I offered those as a simple intro to a lame person who thinks Apple invented event driven development. You can spend years of your life learning about it, and you would have inside knowledge of IT. I did that and I do. You do not, and that is quite OK. As you said, you are an artist. I would not expect a writer to know inside workings of a word processor, nor filmmaker to know inside workings of video editing suite, or… That is quite normal. I don’t know about ancient Mayans, and there are people who wrote books on that topic. What I do expect from any discussion is that people do their research, and if they post a link to a patent, and I tell them why I think this is not enforceable patent (and I stress that I am not a lawyer, but IT person), to either follow that information and gain a bit of insight and understanding of my position, or not, but not to reply with insinuations and so on.


45 ulicar { 03.04.10 at 6:56 pm }

P.S. just to show you what patents are doing to IT, check this one out http://www.gizmodo.com.au/2010/03/the-mobile-patent-mexican-standoff/ Do you think all those companies that are targeting Apple are using s-h-i-t for brain lawyers, or that Apple is on purpose violating other’s patents?

46 Eric in London { 03.04.10 at 7:09 pm }

I do think I’ve gained some insight and understanding of your position.

47 counterproductive { 03.04.10 at 7:11 pm }

I’m bemused by all the comments that go on about Apple’s alleged “copying” of technology from Xerox Park, and using these allegations to dismiss Apple as a hypocritical, lazy, innovation-stifling, patent-trolling company — despite anything MS, Google, HTC or anyone else may have done or not done in the intervening 30 years.

As though the Macintosh was not the first consumer computer with a GUI. Well, it was. I was 14 in ’84, and my family bought one.

I think people are quite fond of dismissing Jobs’ technical vision, as though he is some kind of snake oil salesman (Ballmer anyone?). However, I think he deserves some credit. The Mac was Jobs’ baby, and to take a concept where a Xerox team had put a couple of GUI elements over a dos-type OS, and to turn that into a complete GUI OS wasn’t a simple case of stealing by any stretch of the imagination. Using the idea of graphically manipulated objects on screen, the whole desktop and windows paradigm was an Apple development.

For his next act, Jobs founded Next. This forms the basis of OS X. Now, I know it is easy to think Jobs should get no credit whatsoever for anything, because looking at the other side you get an opportunist geek who bought an OS then pulled a fast one on giant IBM. His was followed by his lucky roommate who probably doesn’t know a line of code from a serial number.

Really trying hard to make a case that Jobs’ has not got an innovative bone in his body, aren’t we: the Newton failed? Marketing-wise, yes. As a device, no. It was still ahead of its time and apparently the user experience was very good, and they are still sought after. I tried a Palm Pilot a couple of years ago. People sticking to a Newton until the iPod Touch arrived didn’t miss much. Apple has learned a lot since then and has great vertical integration between its products and services. They have worked very hard to get ahead of the competition in innovative ways. They didn’t have a syncing and store service for the Newton.

Another thing that bemuses me is all the insistence that Apple products and services distinctly lack substance, that they are all glitz and glamour and form over function, toys and faddish gadgets one and all. Ironically, the same people seem to go on about how tired and poor and stale the iPhone has become because it has changed its outward design very little in three years. Oh, how innovative other companies are because you can choose colors and configurations and button styles! As though these poor deluded Apple users faddishly and slavishly sit around comparing their pimped up and tricked out and wall-paper clad Apple hardware. No, Apple users quietly get on with real work and differentiate themselves by actually producing real results in the real world because they know they can rely on Apple to provide tools that actually do innovate and facilitate the way we do things, challenging us to do new things in new ways, that, once looked back upon make us think, “duh, how could it have been any other way?”

Unfortunately, this naturalness that Apple brings to everyday tasks leads some to think that it must have been so obvious that surely there was relevant prior art; surely someone else could not have possibly copied Apple; surely Apple cannot possibly be serious about defending its IP advantages; surely Apple is the bad guy, the new MS.

Well, I’m a desktop computer guy. Somehow, I have managed to live without a laptop and even without a mobile phone. I do have an iPod Touch. I can tell you I will order an iPad as soon as available. I am catching a glimpse of a little bit of innovation there, and I anticipate it will allow me to do some new things in new ways that will seem very natural. But, hey, if some of you don’t see that, no sweat.

48 Per { 03.05.10 at 12:55 am }

Hey Daniel, what happened to your classic illustrations? I want them back!

49 john.scully { 03.05.10 at 5:30 am }

First I have to say that you’re a superb writer Dan. That said, I’m an avid technologist: I love tech. I own an iphone but work on a Vaio PC at home, a Mac at work (I’m a designer). I’m no fanboy but I have to say, I’ve been following this blog for a bit but there are a few statements in this article that come across as less objective and more fanboyish, the biggest and most obvious being your statements about WP7.

I’m one of many that was/am tired of Microsoft and didn’t expect much from the unveiling of WP7, but I was also one of the many that ended up being blown away by what I saw and heard. Dan, you cannot be more wrong about WP7 being a doppelganger of the iphone (as you repeat several times in this article)– it’s obvious to anyone who reads that statement that, at least at the time of writing this article, you hadn’t read up on or watched the videos about the WP7 OS. WP7 cannot be more different from the iPhone OS. 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. The WP7 OS feels almost alive next to the iPhone’s, and is more akin to WebOS on an extremely heavy dose of steroids. And that’s just the functionality. Aesthetically the OS also looks absolutely nothing at all like the iPhone OS in any way, something that’s easily verifiable and I challenge you to prove me wrong. The only things it seems to have in common are multitouch (which is NOT Apple technology), an accellerometer, and proximity sensors I think. As far as aping hardware design, the concept of a big screen-ui driven device is not something new, even before the iPhone many Windows-Mobile and Palm devices sported this look sans keypads (for example, I owned a couple of Eten devices a long time ago that predate the iPhone). It also uses a much different screen aspect ratio and higher resolution screen, and camera.

All I have said above is easily verifiable. So if WP7 differs in all of the above, where does your claim of it aping the iPhone come from? For me personally, WP7 represents an evolution in current mobile OS design, much as the original iPhone did in it’s time.

You cannot let your dislike of a company blind you from it’s innovation and what is clearly a better mobile OS. And I am not alone in this assertation, most of the blogoshphere agrees on that point: it is a much different animal and an arguably better OS than the iPhone’s. For all of their miscues and mistakes, Microsoft has finally gotten it right, and it didn’t have to ‘steal’ much, if anything from Apple to do so.

I wish people wuld get off this whole Apple vs the World thing. It’s technology, and tech is meant to enrch our lives, regardless of who puts his/her stamp on it. Apple has stolen ideas blatantly, as has Microsoft, and now Google. It’s the nature of the business. Only thing is now Apple has become more Microsoft than Microsoft ever was, at least in my opinion.

50 Aframe { 03.05.10 at 9:26 am }

All other considerations notwithstanding, could it be that having got Psyshter out of the way, Apple’s lawyers finally have time to spare for this?

Also not connected, but increasingly common here in Japan, EVERY single person at the dinner table had an iPhone. My wife, who has no understanding of or interest in technology, got into a conversation with her friend about apps for recipes and running the Tokyo Marathon. Think they would do that with HTC phones?

51 miloh { 03.05.10 at 10:45 am }


“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.

52 ObamaPacman { 03.05.10 at 3:44 pm }


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

53 cy_starkman { 03.05.10 at 11:31 pm }

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

54 Chipotle { 03.06.10 at 1:38 am }


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.

55 john.scully { 03.06.10 at 4:41 am }


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.

56 Joel { 03.06.10 at 7:16 am }

“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.

57 Joel { 03.06.10 at 7:18 am }

“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.

58 gctwnl { 03.06.10 at 7:36 am }

@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.

59 john.scully { 03.06.10 at 8:26 am }


“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]

60 john.scully { 03.06.10 at 8:33 am }

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.

61 Mark Hernandez { 03.06.10 at 3:28 pm }

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. :-)


62 Eric in London { 03.07.10 at 6:37 am }

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.

63 John { 03.07.10 at 8:07 am }

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

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

64 john.scully { 03.07.10 at 11:11 am }

“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?

65 Joel { 03.07.10 at 4:05 pm }

@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.

66 John { 03.07.10 at 4:40 pm }


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.

67 john.scully { 03.07.10 at 6:23 pm }


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.

68 john.scully { 03.07.10 at 6:29 pm }


69 cy_starkman { 03.07.10 at 9:25 pm }

@ 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.

70 enzos { 03.07.10 at 10:17 pm }

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)

71 Joel { 03.08.10 at 12:27 am }

Yes, that would make sense…!

72 John { 03.08.10 at 1:13 am }


Touched you on a tender spot?

73 john.scully { 03.08.10 at 2:23 am }


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.


74 Eric in London { 03.08.10 at 3:58 am }


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.

75 ReginaldW { 03.08.10 at 4:26 pm }

@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.

76 ReginaldW { 03.08.10 at 4:52 pm }

@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?

77 cy_starkman { 03.08.10 at 5:31 pm }

@ 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

78 cy_starkman { 03.08.10 at 7:07 pm }

@ 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.

79 gctwnl { 04.11.10 at 3:52 pm }

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

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