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

As we have seen from the outcome of the Apple v. Samsung trial, the jury found that Samsung willfully infringed upon intellectual property patents which Apple held that caused customer confusion as to product origin and as a result, damaged Apple's sales.

Whatever you think about the "rightness" of the decision, a decision in a court of law is a decision in a court of law. And if that decision is ultimately upheld, then I think we can all agree that the Android ecosystem of the future will look very different than the one that we see today.

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

• I also think that it is likely that Samsung might have to pay triple (treble) damages due to "willful intent" to infringe.
• There is also 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 that given the breadth of the patent infringements that were held up in the trial, 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.

While the companies battle it out in appeals court, what can Android partners such as Samsung do in their defense? Make software and design changes so that Apple cannot pursue bans on their products?

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. I'll get to that in just a moment.

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 mobile devices 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.