Does Apple's victory over Samsung signal an early demise for Android?

Moderated by Lawrence Dignan | September 10, 2012 -- 07:00 GMT (00:00 PDT)

Summary: Jason Perlow says Android is toast. James Kendrick thinks one jury's ruling won't make or break a thing.

Jason Perlow

Jason Perlow

Yes

or

No

James Kendrick

James Kendrick

Best Argument: Yes

12%
88%

Audience Favored: No (88%)

The Rebuttal

  • Great Debate Moderator

    Mic check: Are my debaters ready?

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    Posted by Lawrence Dignan

    Bring it on, Kendrick

    And don't underestimate the underdog.

    Jason Perlow

    I am for Yes

    Ready here...

    Nice to have the wisdom of the crowd behind me. :-)

    James Kendrick

    I am for No

  • Great Debate Moderator

    First question, gentlemen:

    Apple notched a key victory over Samsung on the patent front, but do you think the win will hold up after appeals?

    Posted by Lawrence Dignan

    Extremely likely

    I believe it is extremely likely that many if not all of the infringements of Apple's patents patents will be upheld.

    I also think that it is likely that Samsung might have to pay triple damages due to willful intent to infringe, and that there is a very high likelihood that the D'889 patent (the one which covers the industrial design of the iPad) which was found not to be infringed by Galaxy Tab may be found to have been infringed after the fact as it is still being pursued in the courts by Apple.

    I also think there is an extremely high likelihood that Apple will be granted with a sales ban on the Galaxy S3 and several other current Samsung phones in the interim.

    Jason Perlow

    I am for Yes

    Probably

    The verdict will probably hold up after appeals, although perhaps not in full as awarded. The many questions about the jury in the trial should be a factor in appeals that may force scrutiny.

    Rarely has a jury admitted that they ignored a key point of law in the deliberations as the foreman admits in this case. The damages in such a suit are restricted to actual damages that Apple (in this case) accrued, yet one jury member admitted after the trial they skipped the concept of prior art as that was "bogging them down" and that the massive damages were awarded as they "wanted to make sure the message we sent was not just a slap on the wrist" ... "to be sufficiently high to be painful".

    Neither of those jury disclosures should hold up in appeals as they invalidate the very premise behind patent enforcement.

    James Kendrick

    I am for No

  • Great Debate Moderator

    Assuming the win does stick...

    ...what do you expect Android partners to do? Theoretically, Samsung, HTC et al could customize more.

    Posted by Lawrence Dignan

    Avoiding further litigation

    As I said in a previous article Samsung and Google need a new dress , it is possible for Android partners to avoid further litigation and bans by creating a distinct trade dress for their devices which are unmistakeable from iOS devices.

    Amazon appears to have done this successfully with Kindle Fire and this has kept their products out of Apple's legal crosshairs. For now.

    Software alterations would also have to be made in order to avoid patent infringement. The most notable of which is D'305, which covers a grid of rounded square icons against a black background -- the trade dress of Apple's iOS.

    There's a bunch of ways Google and its partners could handle this. Obviously, change the icons to circles or some other shape, and change the arrangement of the icon grid, perhaps to something more geometric.

    In any case, Google and its partners need to patent it when it is done.

    But aside from trade dress/industrial design alteration, there is also the issue of the utility patents that were violated in the Samsung v. Apple case, and the only way to avoid that would be to remove the infringing functionality.

    Much of this functionality is critical to the way in which tablets operate, such as Apple patents D'381, D'915 and D'163, which cover many of the multi-touch gestures we come to think of as very basic in the operation of mobile devices, such as pinch to zoom/twist and touch scrolls, among several others.

    I have another scenario to propose, and it's not rosy for the OEMs. Considering all these trade dress and software functionality changes may need to be done in order to avoid litigation, it is possible that we may see a number of the OEMs -- perhaps even Samsung itself -- drop out of the Android business entirely.

    Google may wish to counter this OEM diaspora by making Nexus the only brand of Android device. The logical thing for it to do in that case would be to use OEMs as ODMs (Original Design Manufacturers) with Google shouldering all of the device support as well as any future potential legal risks.

    This is how a giant like Samsung can stay in the game, in its traditional component and third-party device manufacturing role. But Google would have to completely indemnify Samsung as the primary ODM in this scenario.

    Jason Perlow

    I am for Yes

    Apple deliberately avoided going after Android itself

    ...and its award against Samsung sends a firm message that that company's customizations are at fault. This actually puts OEMs on notice that customizations may not be the way to go.

    That could change in the future should Apple target Google and stock Android directly but in the meantime it should be business as usual for Android.

    James Kendrick

    I am for No

  • Great Debate Moderator

    Other choices?

    Do OEMs really have any other solid mobile OS choices as well as ecosystems to compete?

    Posted by Lawrence Dignan

    Yes.

    I believe Windows Phone 8 and Windows RT would be excellent alternative platforms for OEMs to pursue. Samsung has already done this by previewing the ATIV line of products it has shown most recently at the IFA in Berlin.

    Jason Perlow

    I am for Yes

    Windows Phone is out there

    And the fact is the biggest OEMs, Samsung, Nokia, HTC, etc., will be making Windows Phones. There is that pesky licensing fee but OEMs may find that appropriate given Microsoft's licensing agreement with Apple. There should never be an infringement suit against Windows Phone and that may now be an attractive option since the big award against Samsung.

    Outside of Windows Phone and Android there's really nothing else for OEMs to consider, although that may change with RIM's recent admission it may license BlackBerry 10.

    James Kendrick

    I am for No

  • Great Debate Moderator

    Amazon's approach

    Why or why not would Amazon and its approach to Android be free of the Apple patent war?

    Posted by Lawrence Dignan

    Amazon represents a critical sales channel for Apple products

    As I mentioned earlier, Amazon has managed to avoid Apple's legal crosshairs by creating a distinct trade dress for the Kindle Fire and also a unique user interface which looks nothing like iOS and by the same token, nothing like Android.

    Even if it were to be determined by Apple internally that the Kindle Fire infringes on their own utility patents, it is very unlikely that Apple would pursue a legal confrontation like we have seen with Samsung.

    As the largest online retailer in the world, Amazon represents a critical sales channel for Apple products, so Cupertino is not stupid enough to poison its own well. If it came to it, Tim Cook would license via FRAND what is necessary to Jeff Bezos in what would amount to chump change for Amazon.

    Jason Perlow

    I am for Yes

    I don't see Android being free of the looming specter of Apple patents...

    ...but Amazon has taken pains to keep its UI totally different in style from iOS. I don't see Apple going after Amazon and the Kindle Fires for that reason, as it would be a big unknown how successful such an attempt would be. Apple seems to restrict its patent defense to those cases it seems obvious (to them) that they'll be successful.

    I do think Apple will keep cherry picking which OEMs and features to go after, one at a time. The strategy employed to date has been mostly successful and it will stick to it. The objective for Apple is to disrupt the behemoth that is Android, and this method is good for that.

    Google will change Android if necessary to avoid continual litigation if it knows what is good for it. Nothing core to the OS has been ruled an infringement, only individual features. We users may not like the changes but they'll be made if required.

    James Kendrick

    I am for No

  • Great Debate Moderator

    Is there a scenario...

    ...where Amazon benefits the most from the Android patent loss?

    Posted by Lawrence Dignan

    Absolutely

    As I said in my article over the weekend, Amazon could end up owning the bulk of the Android tablet and device market , if any variation of the worst-case scenarios I mentioned above come to pass.

    If Google is forced to consolidate its resources and moves exclusively towards a monolithic strategy of releasing Nexus products designed and built by ODMs to be the public face of Android, rather than the fragmented device ecosystem that is under bombardment by Apple in the courts now, Amazon is in an excellent position to become the primary supplier of Android tablets, as my colleague David Chernicoff noted this week.

    Amazon has proven it can market the devices cheaper than Google and its OEM partners by having them ad-subsidized, while at the same time providing a more integrated content consumption ecosystem of books, movies and apps.

    And Amazon as the world's most prominent internet retailer has a weapon that neither Google nor any of its partners have: Prime, which it can use as a value-added benefit to using Kindle Fires in the form of more and more free incentives to those who subscribe to the service.

    Jason Perlow

    I am for Yes

    I think we're already seeing it

    Amazon has never mentioned Android and has designed a UI that is deliberately nothing like Android. The average consumer on the street doesn't even know the Kindle Fire is built on an Android kernel, and that's intentional.

    Amazon's biggest competitor has always been Android and not Apple, and that will not change. The Kindle Fire already accounts for 22 percent of all tablets sold, making it easily the biggest "Android" tablet. That will continue with the release of the Kindle Fire HDs in time for the holidays.

    In that vein, anything that slaps Android is a plus for Amazon and the Kindle Fires.

    James Kendrick

    I am for No

  • Great Debate Moderator

    Does Apple need to sue Google over Android...

    ...to really win the war?

    Posted by Lawrence Dignan

    No, it does not.

    It simply needs to force Google's partners out of the market, as I outlined above.

    Jason Perlow

    I am for Yes

    This victory over Samsung is significant enough to be key in the long-term patent war.

    Apple doesn't really need to get Android taken off the market, it is strategic to just keep interfering with Google's key Android partners. It can do this indefinitely, one at a time, and in each country.

    If it wants to get Android totally off the market, and Steve Jobs indicated that was the goal, then it does need to go after Google directly at some point. There is a risk in doing so, as a victory by Google in such a suit could end the litigation against the partners once and for all.

    James Kendrick

    I am for No

  • Great Debate Moderator

    If Apple did sue Google...

    ...what would be the three key points it would have to make?

    Posted by Lawrence Dignan

    It would look very similar to Apple v. Samsung...

    ...in that Google violated Apple's patents for a) Industrial Design/Trade Dress, and

    b) Utility patents/Software functionality

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

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

    c) During the three years that Google's former CEO, Eric Schmidt was on Apple's Board of Directors and was in close confidence of Steve Jobs, he had extensive knowledge of Cupertino's product plans and strategy, and used those plans and strategies to advance Android's development.

    In essence, that Eric Schmidt 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.

    Jason Perlow

    I am for Yes

    UI, multi-touch and operation

    1. Look and feel of the basic UI. This would cover the home screens and the display of icons for all installed apps. Android has the vast library of widgets that change the look of the home screen, and Google would no doubt use that to fight such a claim. The beauty of Android is the user customization possible, and the argument could be made by Google that every home screen is different by design.

    2. Multi-touch. This could be the diciest argument Google would have to fight. Android 1.0 deliberately didn't support multi-touch due to concerns about infringing Apple's patents. Multi-touch support wasn't added until Android 2.0, which appeared around the time Eric Schmidt left the board of Apple. That implementation of multi-touch was deliberately left up to the individual app developer, freeing Android proper from litigation. That could be Google's savior in a suit by Apple against Android itself.

    3. Operation. Apple would have to make a compelling case that basic Android device operation is much like that of iOS. This would be a much harder argument to win, as there are subtle differences all through Android. Apple would most likely pick a few features that are similar, and there are some, to bolster any claim against Google directly. This would be much harder to win in court and is no doubt why Apple's strategy so far has been to go after particular OEM implementations of Android.

    James Kendrick

    I am for No

  • Great Debate Moderator

    Another line of thinking is that Apple's victory over Samsung somehow helps Windows Phone adoption.

    Do you buy that reasoning?

    Posted by Lawrence Dignan

    Microsoft's mobile offerings are safe

    Well, it's a given that Windows Phone/Windows RT/Windows 8 has a unique trade dress and industrial design that sets it apart from the iOS design and utility patents, so Microsoft's mobile offerings are safe from Apple litigation in that respect.

    It should also be noted that Apple and Microsoft have always been at some form of detente because Redmond develops critical apps for Apple platforms, such as Office the Mac. It has also licensed ActiveSync to Apple in order to make corporate Exchange email functionality work on iOS. So the two are in sort of a Ying and Yang balance and have agreed to tango with each other.

    I think that the new Nokia products that were just introduced, the Lumia 920 and 820 look like excellent products and the PureView photographic technology that they are bringing to the table is phenomenal, which may give them an advantage. But I am not sure the Finnish handset manufacturer can generate enough sales in a rapid enough fashion in CY2013 to keep them above water. We'll see how Samsung's offerings do.

    Jason Perlow

    I am for Yes

    Maybe

    Due to its licensing deal with Apple, Microsoft has ensured that Windows Phone is safe from infringement claims. That may appeal to OEMs over Android, especially if Apple continues to sue others given the success against Samsung.

    That said, the fact is with 1.3 million Android devices activated every single day, the money involved with the platform is too big for major players to ignore. OEMs are scratching for every dollar they make in the mobile space, and that means targeting the biggest market possible. Profit margins are low in this space so going after the biggest piece of the pie is mandatory for chance at success. That means Android.

    Windows Phone 8 is poised for release and while it is the best version of that OS yet, the market share for the platform is abysmally low. Major OEMs need that target market to be a lot bigger before it becomes a viable alternative to Android.

    James Kendrick

    I am for No

  • Great Debate Moderator

    Even if Windows Phone gained traction...

    ...would it really take share from Android---or RIM?

    Posted by Lawrence Dignan

    There's no question in my mind ...

    ...that strong Windows Phone adoption would damage RIM, because the core of what RIM is trying to do is secure enterprise messaging and Windows Phone 8 has that same core functionality.

    I cannot predict what goes on in the complex minds of consumers. I can only analyze industry patterns and see if there are common trends that emerge. But I don't think there is really room for three or four major platforms, there's room for two at best, especially given the horrendous economy we're all saddled with.

    I've made that argument in the past and I continue to stand by it today.

    Jason Perlow

    I am for Yes

    RIM yes, Android maybe a little.

    Windows Phone grabbing Android market share is the classic catch-22, Windows Phone would have to gain a lot of market share to make it a viable alternative for OEMs and it has to grab Android share before it is viable. Android is so huge already that it is like that proverbial snowball charging downhill, getting bigger due to its own momentum.

    Microsoft must seriously market Windows Phone to give it any chance, and they are big enough to do so. They have no chance to unseat Android from its lofty perch but they can grow bigger than they are currently.

    BlackBerry 10 is the dark horse from RIM that looks good so far but there's no way to predict its true potential. RIM has stagnated for so long that its not on consumers' minds any longer, and that must change to give it a chance. If it doesn't take off immediately at the launch next year, Windows Phone could easily swoop in and steal its thunder.

    James Kendrick

    I am for No

  • Great Debate Moderator

    Outline a scenario where Android thrives even after the Apple patent victory.

    How likely is this scenario?

    Posted by Lawrence Dignan

    It ain't happening.

    The judgment will be upheld and Android is going to require changes that will affect how consumers will interact with the devices, very likely making the products less palatable, as James has outlined in his article.

    Jason Perlow

    I am for Yes

    The platform will continue to thrive

    As much as Android enthusiasts don't like the thought, if Google changes the features of Android that have been ruled to infringe on Apple's patents, the platform will continue to thrive. I'm no patent attorney so I won't venture to advise what changes might be necessary.

    Google should step up and resolve all infringing issues once and for all. It owes that to the many OEMs who have invested millions in growing the platform. If it does that, and I suspect that's easier than we think given how few patents Apple has thrown at Android, then things should be just fine.

    I do think Google will do that if it comes to that. It would be silly to ignore the threat which is real and whether we agree with it or not Apple's patents have now been proven to be valid in a court of law in the US.

    James Kendrick

    I am for No

  • Great Debate Moderator

    Give me a scenario where Android stumbles.

    How likely is this scenario?

    Posted by Lawrence Dignan

    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.

    Jason Perlow

    I am for Yes

    I don't believe Google would let this happen ...

    ...but if it chooses to ignore the Apple patent threat to the point that major OEM partners start getting product injunctions things could get dicey. Apple is already asking for injunctions against Samsung's Android products ruled to infringe on its patents. I don't believe the court will award those injunctions to Apple, but if it does Google needs to step up to help its partners.

    This is simply a business after all and if partners can't be assured they can sell their products they will be forced to look elsewhere. Google cannot let this happen, no matter the cost in time and resources

    James Kendrick

    I am for No

  • Great Debate Moderator

    Android has a lot of traction in emerging markets.

    China notably isn't likely to sweat Apple's patent victory. What are the chances that Apple would go after ZTE or Huawei?

    Posted by Lawrence Dignan

    I think we need to regard China as an alternate universe

    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.

    Jason Perlow

    I am for Yes

    I don't see Apple doing that no matter what happens given its recent push into the Chinese market.

    Its retail operation is already growing fast in China and I don't believe Apple would jeopardize that growth. The iPhone and iPad are not the biggest in the Chinese market, but that market is so vast that it still represents the potential of billions in revenue. It's not going to rock the sampan to go thermonuclear on Android in China.

    James Kendrick

    I am for No

  • Great Debate Moderator

    Last question: About the tablet market...

    Will Apple's patent victory have any impact on the tablet market---given that Android's share (excluding Amazon's customization) isn't so hot?

    Posted by Lawrence Dignan

    Market share sucks

    Android's tablet market share excluding Amazon's claimed 22 percent share sucks, and will continue to suck, patent victory or not. Android tablets have a multitude of user acceptance issues that inhibit them from becoming smash hits. If anything, all of this is going to place Amazon and possibly Microsoft much higher on the tablet food chain than they are now.

    Jason Perlow

    I am for Yes

    The Android tablet market share is almost non-existent if you exclude Amazon...

    ...and I don't see this having an impact on it. Apple's concerns over Android have always centered around the huge Android smartphone market, and that won't change.

    Android tablets are not going to take off in the market, especially with the competition from Amazon so I don't see them becoming a threat to Apple in the near future. Amazon, however, may start to concern Apple given the tremendous sales of the Kindle Fire so far. I don't think Amazon is infringing on Apple's patents with the Kindle Fire UI, but Apple may eventually feel differently about it

    James Kendrick

    I am for No

  • Great Debate Moderator

    Thank you...

    ...for a Great Debate. Readers: James and Jason will post their closing arguments tomorrow. And look my my final verdict on Thursday. And don't forget to vote and comment.

    Posted by Lawrence Dignan

Talkback

130 comments
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  • Obviously not

    Where else will the huge number of OEMs go?
    Windows phone 8? sure, it would benefit, but there is no way in hell that windows phone 8 can suddenly become the "go-to" phone OS

    Back to Symbian? hey, if Nokia was still pushing it, than it is a possibility, but now, symbian has NO potential, especially considering that Nokia did not release a single new Symbian at Nokia World.


    WebOS, well that doesn't seem likely, since WebOS still NEEDS a LOT of work. I find it ironic that "Web"OS has such poor HTML5 support.

    Meego? I seriously doubt it, since both major backers (nokia and intel) have backed away. The Jolla mobile guys might be onto something though, but I doubt that they can pull some mainstream success.


    So where does that leave us? right, android
    the_tyrant
    Reply 3 Votes I'm for No
    • Apple fan

      I've been an apple developer and fan since '86 but while I see android adjusting and perhaps being a bit more innovative I don't see it disapearing.
      dheady@...
      Reply Vote I'm Undecided
    • Where else will the huge number of OEMs go? Simple. Microsoft.

      There is more money to be made selling Windows RT tablets and Windows Phone 8 than there is selling Android - and these OEMs become more or less un-sue-able. Of course, Windows RT and WP 8 are BIG unknowns but if I had to bet, I'd give Microsoft better odds than Android.
      M Wagner
      Reply Vote I'm Undecided
  • I don't think so...

    There are still court battles going on in 6 or 7 dfferent countries between Apple and Samsung, according to reports I've read. This decision is said to have been made by a bias jury? Let's wait and see if Samsung wins anything more.
    allan55casey@...
    Reply 2 Votes I'm for No
    • Most Excluding the USA

      Have ruled against Apple.
      Guess this means (IF upheld in the USA) that the rest of the world will get the good stuff.
      rhonin
      Reply 5 Votes I'm Undecided
      • More innovation?

        Rulings in Apple's favor just make it necessary to be more creative if you're not Apple. And vicie versie. I've had to look for the big button on the bottom front or big Apple on the back of smartphones for quick ID'ing for a while now. That Samsung's phones look a lot like Apple's isn't exactly a revelation.
        bert.knabe@...
        Reply 1 Vote I'm Undecided
        • You mean like...

          Full QWERTY, big SAMSUNG on the front, and 4 phisical keys on the bottom. Are not differential enough?

          Yes US jury did ruled that such phone violates Apple design patent...

          There is no space left.....
          przemoli
          Reply 3 Votes I'm Undecided
          • The USA is not the world!

            Most people who have owned both Samsung phones and apple phones are aware of the significant number of differences between the devices and could never mistake one for the other.

            I honestly feel that if anything significant happens from this case, then it may be a revision of patent laws in the US where ridiculously wide patents are granted and where the government and courts have a tendancy to, shall we say "respect" US owned companies.
            cymru999
            Reply 4 Votes I'm Undecided
          • The patent system needs fixing

            Unless the US patent system is fixed, and stops granting wide patents on obvious tech, then backing USA companies even when it is obvious it is anticompetitive, then the US will become a backwater country for tech.

            Have no doubt, the rest of the world likes competition and choice and is a far larger market than the USA.

            Apple's 'win' just makes a mockery of the US patent system and will hurt the US customer's choice in future. The rest of the world will move on.
            andywright
            Reply 1 Vote I'm Undecided
          • They're not identical

            But when I see someone holding a phone and only see the front screen I sometimes have to look for secondary clues. Set the iPhone and some Samsung phones side by side and they're obviously different, but at quick glance some of them can be confused.

            I own a Galaxy S 4G and I support about 100 users with iPhones. I should be able to tell at a glance, but I can't always.
            bert.knabe@...
            Reply Vote I'm Undecided