Without radical change in patent law, Android's ecosystem will die

Summary:Only the invalidation of Apple's utility and design patents will save Android from possible extinction as a widely-used mobile device platform.

Now let's get back to the issue of patents.

For the time being, Apple has chosen a strategy of attacking Google's Android OEMs via proxy war as opposed to a direct legal assault.

This is the most prudent war strategy for Apple because if it can force Google's partners out of the market, Android is effectively neutralized.

But this is not to say that direct litigation might not come to fruition. It still could.

If Apple attacks Google directly with a lawsuit, then it would for the most part take on the form of what they did against Samsung.

Apple's lawyers would need to prove to a jury that that Google violated the company's design patents for

  • a) Industrial Design/Trade Dress, 
  • b) Utility patents/Software functionality

I think the emphasis would be more towards b) rather than a) and Apple would be more likely to drag out many more examples of b) than we saw in Apple v. Samsung.

Apple does have an awful lot of utility and design patents.

However, there's a twist. I believe there would be additional claims brought forth by Apple's litigation team that:

In essence, that Eric Schmidt and other Google executives willfully engaged in a form of corporate espionage.

If Apple attacks Google directly you can be sure that this is going to be brought to the front and center. It won't be pretty.

If you thought Samsung's dirty laundry in this last trial was bad, wait until you see the stained underwear collection from the Googleplex.

Android will stumble badly if any of the conditions occur where the key design and utility patents are upheld in Apple v. Samsung even after a lengthy appeals process.

In the interim, Samsung will have to make radical changes to their handset and tablet products which may resonate badly with consumers. 

This could cause them and other OEMs such as HTC, which are already in a weakened financial state, to exit the market, particularly if Google goes with an all-Nexus strategy as I discussed above.

This is a very likely scenario in my opinion.

But even with all of these legal encumberments, even I have to admit that Android as mobile OS has staying power. It's too big to go away completely, and the fact that it is an Open Source project means that the code could continue to thrive even under alternative or even community stewardship (think Amazon or even Apache) for a long time to come. 

We also have to take into consideration that China has a huge domestic demand for Android-based products, and one that plays by a completely different set of cosmological constants than the North American market.

I don't see Apple trying to attack Chinese companies, particularly given how reliant Apple is on the Chinese manufacturing base.

But we may need to face some hard realities here. It is very likely that Apple will ultimately prevail against Samsung, and as a result of the damages awarded to Cupertino (which could triple) the Korean giant might have to make some difficult choices.

And if Samsung withdraws from the market or has to affect drastic changes to its products to avoid infringement, so will HTC and any number of other weaker OEMs.

Drastic changes do not necessarily bode well for Android's ecosystem. As my colleague James Kendrick has said, people like the fundamental aesthetics and basic functionality aspects of Apple's products, and  that may be the only formula that the buying public is willing to accept .

Unfortunately for Samsung and Google, those aspects are patented. By Apple.

As if customer preference towards Apple's patented design and functionality isn't reason enough to worry about Android's longevity, it is becoming increasingly likely that the Android device ecosystem of the future will be homogenous instead of being a heterogeneous one

This would be not unlike what exists today in in Apple's supply chain driven world (a la Foxconn and Samsung) where Google controls who manufactures and supplies components for their devices.

Google's walled garden will have fewer guard towers and nicer guards, but it will still be a walled garden.

And while Android may not "die" in that sort of a world, it won't prosper either. In a choice between walled gardens of Apple-controlled, Amazon-controlled, Microsoft-controlled and Google-controlled products, the players with the more powerful ecosystems and the most patents will prevail.

For Android to thrive, the US Patent system as a whole requires reformation, or Apple's utility and design patents that give them a virtual stranglehold on the industry need to be invalidated.

I don't see either of the two things happening anytime soon.

Topics: Mobility, Amazon, Apple, Microsoft, Samsung


Jason Perlow, Sr. Technology Editor at ZDNet is a technologist with over two decades of experience with integrating large heterogeneous multi-vendor computing environments in Fortune 500 companies. Jason is currently a Partner Technology Strategist with Microsoft Corp. His expressed views do not necessarily represent those of his employer... Full Bio

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