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

Daniel Eran Dilger

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

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

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

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

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

Why Apple’s Tim Cook Did Not Threaten Palm Pre

Apple vs Nokia

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

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

The real patent story behind Apple vs Nokia

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

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

Apple vs Android?

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

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

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

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

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

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

Apple vs HTC

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

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

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

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

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

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

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

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

Apple vs Open?

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

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

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

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

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

Google fans fail to contemplate why Android is free

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

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

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

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

Apple’s Billion Dollar Patent Bluster

Whither the Apple Google Partnership?

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

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

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

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

This all happened before

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

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

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

Office Wars 3 – How Microsoft Got Its Office Monopoly

But this is not anything like Microsoft suing Linux

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

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

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

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

Microsoft’s Unwinnable War on Linux and Open Source

It’s the hardware

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

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

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

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

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

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

  • http://bkpfd.org qka

    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]

  • gus2000

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

  • rizzior

    Great Job as Usual Danny Boy..

  • Raymond

    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.

  • HCE

    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.

    – HCE

  • ShabbaRanks

    At last, a good long read.

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

    Good work.

  • Mike

    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.

  • Malatesta

    “…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]

  • Ludor

    Good work, Daniel.

  • ulicar

    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 ]

  • dchu220

    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.

  • Pingback: Apple Inc. v. HTC: Day 2 « Android Junkies()

  • Malatesta

    @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.

  • broadbean

    “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]

  • Malatesta

    “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! ]

  • confluence

    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.

  • npodges

    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 ]

  • ReginaldW

    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.

  • Malatesta

    “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 ]

  • bigbadrobbo

    Nice oblique reference to your question at the shareholders meeting!

  • tmay

    Dan,

    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.

  • ulicar

    @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.

  • gus2000

    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)

  • gctwnl

    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.

  • gctwnl

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

  • gctwnl

    @ulicar:

    “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.

  • olambo

    “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 :)

  • gctwnl

    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.

  • confluence

    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.

  • mailjohannes

    “[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.
    Excellent.

    J.

  • Joel

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

  • ChuckO

    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.

  • John

    @confluence

    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”.

  • gctwnl

    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)

  • Per

    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.

  • berult

    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]

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

    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.

  • Malatesta

    @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.

    @gus2000

    “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.

  • ChuckO

    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.

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

    @Malatesta
    “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.

  • wwiwilson

    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).

  • ulicar

    @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…

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

    @ulicar
    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.

  • ulicar

    @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.

    Cheers

  • ulicar

    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?

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

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

  • counterproductive

    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.

  • Per

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

  • john.scully

    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.

  • Aframe

    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?