Prof. Doug Lichtman, UCLA School of Law
November 7, 2011
Over the past few weeks, Samsung and Apple have grabbed headlines internationally as each firm has filed, fought, lost, and/or won well over a dozen major patent battles with the other. Apple seems to be the entity truly on the offensive, striking first with fast-tracked patent filings in places like Germany and Australia. But Samsung has quickly built an international patent litigation docket of its own; the flood of filings and headlines has left many in the technology community wondering what is really going on, and when and how it will all end.
Here is my take on two of the big questions:
Why are Apple and Samsung fighting?
One reason for the conflict is obvious: Apple is using patents to try to slow down Google’s Android operating system. Android basically showed up out of nowhere two years ago and yet today it already dominates the mobile marketplace. Sure, Apple might have a higher coolness factor, but Android runs more devices. That surely has Apple nervous. After all, Apple has been building its mobile device empire on the theory that consumers will pay a substantial up-front price in order to acquire the latest devices. But Google’s Android is free, and Google’s recent acquisition of Motorola Mobility has some industry insiders predicting that Google’s next step will be to price mobile hardware at just-above-cost levels. Google would then happily make its money on search and advertising, but where would that leave Apple and its business model? Android’s success, then, is a challenge not just because every Android sale is a lost potential Apple sale, but because every Android sale further entrenches a business model that is inconsistent with the world Apple intended to build. A war with Samsung makes sense, then, as Samsung is one of the largest producers of Android hardware.
But Android is only part of the explanation for Apple/Samsung animosity. Apple is surely also motivated by the fact that Samsung’s current generation of phones and tables borrows excessively from Apple’s designs. The Samsung Galaxy Tab, for instance, seems slavishly copied from the Apple iPad in terms of its physical appearance, its user interface, its colorings, its icons, and dozens of other not-so-subtle characteristics. Samsung likely chose the copycat path intentionally. Apple was running away with the market; copying meant that Samsung could quickly enter the market and show consumers that Samsung, too, can make desirable mobile electronics. But that copycat strategy had a cost, and Apple right now is extracting it.
Who has the edge in the fight?
Apple and Samsung both have tremendous patent portfolios, and no surprise. These are two truly innovative firms with large portfolios of valuable, impressive patents. If the conflict here is rightly analogized to a nuclear war, Samsung and Apple are the United States and the Soviet Union: They each have more than enough patents to obliterate the other, and any numerical differences should not matter much as there is no practical difference between blowing up your rival once, twice, or three times.
Still, Apple likely has a slight edge for two reasons. First, among Apple’s patents are hundreds of patents related to the modern operating system. Now that nearly every device runs a sophisticated operating system, these patents are particularly powerful and valuable. Second, because Samsung seems to have copied so slavishly, Apple has some easy points to score in front of judges and juries. Bluntly, it is one thing to argue complicated and boring positions about technical patents; it is quite another to dramatically put Samsung’s Galaxy Tab on the table next to Apple’s iPad and gesticulate.