By Graham K. Rogers

Opening Gambit:

Apple v Samsung

One of those who was quite put out by the decision was Florian Mueller on Foss Patents, and I would bow to his expertise any day. He regards the decision in Korea as quite troubling (perhaps more so in the light of the decision in California the next day) and calls South Korea a FRAND rogue state: "in order to sell their technology products to the country's 50-million population, they must bow to extortion by Samsung and LG." He adds that there could be diplomatic repercussions, concluding,

If the price to pay for access to the Korean market is unfettered commoditization, Apple should pull out of the market at some point, and return only after the issues have been resolved.

One of the early reports I saw was on the Bangkok Post, but try as I might on Saturday I could find nothing on the online pages concerning the other decision made a day later in California in which Samsung was found to have infringed on many more Apple patents, while Apple was found not to have infringed on any of Apple's.

A slight difference between the two cases -- apart from the number of patents and the weight of the lawyer teams -- was that the decision was made not by a panel of judges, but a jury: 12 good men and true. Like many who have looked at both devices, they were in no doubt that Samsung had copied: this despite the Korean judges' ruling that there was "no possibility" that a consumer would confuse the two companies' smartphones". I don't know what they smoke in Korea, but not many people outside that country think this. The US Jury were also in no doubt that Samsung execs had lied, and the email evidence showed intent.

An example of the hubris involved came from Samsung after the decision in California which was reported on many sites, for example AppleInsider. Two sentences stick out for me: It will lead to fewer choices, less innovation, and potentially higher prices; and Samsung will continue to innovate and offer choices for the consumer.

What utter rot. If they had been interested in innovation, they would not have copied all those patents -- and to avoid arguments, let me focus on rubber banding which both Korean judges and the US jury were sure about. And if there was one example, it might not be a short stretch of the imagination to expect other examples.

As to the other point about continuing to innovate, the case does not offer much evidence for that having been the situation so far. Enforcing patents means to me that the companies can use what has been invented by other companies should those companies allow this and if they pay a licence fee. There are also the FRAND patents that are essential to technology and these also need to be used under licence, but the fees must be reasonable.

The idea about stifling innovation is typical lawyer talk. They obviously have no idea how engineers create things when there is a problem that needs a solution: the Samsung way of stealing what you want, like the GOP way of stealing music they think would go with a campaign, or those who steal pictures and text from a website, simply because they can, is the result of not thinking in innovative ways: and presuming that ownership is a matter of convenience.

So how can Samsung recover from the verdict? Roger Cheng and Jessica Dolcourt, suggest that they will have to go back to the drawing board and invent things. And here's an interesting point: they write that radical new designs are in order. What a brainwave. To be the one that everyone looks up to (and some may well end up copying), they will need to produce something so unusual that the standard ways of working are simply turned on their head and the new product ends up being the de facto standard.

Like the iPhone in January 2007.

That AppleInsider article also had Tim Cook's statement, in which he pointed out that Apple tried to negotiate first, but that was ignored. It was also pointed out that the copying "went far deeper than we knew" which presumably refers to some of the code, and that might be linked to Google and Android. Another article that includes Cook's statement with some comments, comes from Mark Gurman on 9to5 Mac.

The jury in the case (more on this below) decided to award Apple a damage settlement of about half it had been asking for, Mikey Campbell (who must have been the AppleInsider point man here) reports, although this could rise as the term, "wilful" was used. The article here lists all of the decisions as does an item by Kelly Hodgkins on TUAW (there were many others).

An interesting series of comments from some of the jurors appeared online over the weekend and one of these concerned the speed with which the jurors understood the fundamentals behind the infringements: not the legal niceties. This after all is the point of having a jury: so that the case can be decided on the honest opinions of ordinary people: the reasonable man (and woman of course), not the hysterical lawyer. A report on AppleInsider tells us that the jury wanted to send a message.

The explanation of deliberations gives an interesting insight, but the clarity of Apple's arguments, along with the graphic evidence of before and after Samsung phones (before and after the iPhone that is) was compelling. One of the original reports on this was from Dan Levine on Reuters.

There will be a hearing concerning what needs to be banned in the US and a hearing about the preliminary injunction is to be heard on 20 September, Drew Olanoff reports on TNW. However, Foss Patents mentions that the 20 September date may be subject to change.

Also on TNW, Brad McCarty looks at ways in which he thinks the decision will affect the consumer. I do not agree with a lot of what he says but agree that it might drive up the price of Android phones (although not his statement that "many Android phones already cost more than their Apple counterparts"). Like me he takes a different view of the current patent system -- flawed as it is -- writing that "Without that protection, further innovation is stifled because the innovators simply don't want to take the risk of a free-for-all on their creations." Which is a totally opposite view to Samsung's lawyers.

Another editorial style comment comes from Mike Isaac on All Things Digital who looks at the ethics involved and the implications for all Android devices. The article also has a number of useful links to related items.

While Groklaw has some rather serious questions concerning the whole process and things there were a number of problems with the way the jury made its decisions.

And of course, Samsung plans to appeal (Seeking Alpha).

Late News

On Monday morning I saw an article (linked from The Loop) on MacRumours, by Eric Slivka. Picking up the comments of a Samsung Exec as he rushed into their compound, it is reported he said, "It's absolutely the worst scenario for us."

I am incredulous about the incredulity being displayed by Samsung. Have the lawyers told them Apple was totally wrong; did they not believe that such copying was not going to bring them industry friends; did the engineers and managers tell them they did not copy (suggesting rather naive execs)? Surely losing had to be a possible scenario.

Graham K. Rogers teaches at the Faculty of Engineering, Mahidol University in Thailand. He wrote in the Bangkok Post, Database supplement on IT subjects. For the last seven years of Database he wrote a column on Apple and Macs.