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Apple's HTC attack is a very dangerous game

Apple claims that HTC violates 20 patents. A win, and Apple could control much more than handsets
Written by Leader , Contributor

The intellectual property in mobile phones is a mess. Most of it is locked up in a set of cross-licensing agreements between the major players, making it very hard for outsiders to play — except on their terms. If you've ever wondered why there are so few new names in handset manufacturing, one of the biggest markets on the planet, then that is why.

It so happened that Apple, an outsider, chose not to play it that way. It didn't like what Nokia wanted as a cross-licensing deal and hit back with claims of violation of its own handset IP.

HTC is different: it isn't part of the inner sanctum of GSM/3G IP holders, but it is the standard bearer for Android. Its crime against Apple is of playing the same role to the iPhone as the PC did to the Macintosh. Cheaper, quicker to innovate with and easier to adopt — these are powerful things in Android's favour.

Apple doesn't like those odds, but appreciates that attacking a major Linux distribution with patents is incendiary. So, instead of going after Google, it has asked the International Trade Commission to ban imports of HTC's Android phones to the US. Such an outcome is entirely possible, in the name of free trade, and sends a very powerful message to other Android adopters.

So far, so normal in the aggressively dirty world of corporate IP. If you can stand the sight of big companies claiming moral superiority while spitting in each other's soup, it's even entertaining. Think of it as a natural history programme with silverback gorillas ripping chunks out of each other before reaching an understanding over how to divide the females and foliage.

The trouble is, this goes a long way beyond smartphones. The patents Apple has invoked cover some basic aspects of modern computing — and many were written in the 1990s, when a great many very bad software patents got accepted in the first panicky flush of defensive posturing. The impetus then was to have something — anything — to hit back if a rival decided to attack. The broader, and more wide-ranging, the better to up the odds of making any court case too expensive and risky to contemplate.

These weapons of the IP cold war have not gone away. They are poorly forged, indiscriminate and dangerous. Despite Apple's use of them on a hardware maker, they could easily be extended in one form or another to other manufacturers, other operating systems, even entirely different devices. If any of HTC's partners with a lot of IP to their name decide to strike back, escalation could be hard to control.

In the worst case, Apple's patents will be challenged and upheld in court after years of expensive warfare. At that point, we'll have a commercial environment where it is impossible to produce new software without having indemnity through a cross-licensing agreement — as exists now in mobile phone hardware. This would confine innovation, such as it would be, to large organisations and neuter open source.

This would be attractive to the powerful, but inimical to the sort of environment that produced the internet. And Apple.

In the best case, the fear of such a cataclysm will provoke long overdue patent reform. But it is hopeless to expect this to come from those who would only gain from controlling the industry. The Apple-HTC case must provoke more public pressure and more input from lawmakers for reform. The alternative is to be in the pocket of the phone makers for years to come.

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