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

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.

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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.

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.

Topics: Android, Amazon, Apple, Microsoft, Samsung

About

Jason Perlow, Sr. Technology Editor at ZDNet, is a technologist with over two decades of experience 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.

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349 comments
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  • Wow

    You guys have to be the worst writers on any tech site when it comes to logic. There is no way, this stuff is going to stick and California already refused to choose sides by telling both Apple and Samsung Patents aren't there to prevent competition. As soon as an entity foreign to the US entered into a Suit they were found to have compromised Apple's intellectual property.
    slickjim
    • Oops

      California told both Apple and Google that patents aren't to prevent competition and then proceded to whack samsung on the very next trial.
      slickjim
      • But this is only because Apple versus Samsung case was so blatantly obvious

        You can not prevent competition, but IP theft is wrong, too.
        DDERSSS
        • It was not obvious to professional Judges.

          Apple could only get injunction for Samsung Galaxy Tab tablet over design patent.

          Jury ruled that Samsung do not make such thing.

          So if there was anything fairly obvious, jury did not agreed.
          przemoli
          • Read Samsung's memo

            It's clear what their intentions were when iPhone came out.
            ASPNET
          • Nope

            Did in it say "We need to copy iPhone 1:1"?

            No.

            They did say that they need to focus for new design type of devices. And they had done that _before_ iPhone was presented to anyone (for even Samsung).

            IPhone is full of copied designs and ideas from other companies, what have had them even in one smart phone.

            But hey, everyone are copying everyone and no one can not make a big screen touch screen device in other style.

            But, in this case it is about graphical design in some parts, what Samsung added, what Android does not include at all.

            It is Apple vs Samsung and not Apple vs Android.

            When OEM adds things to Android what does not exist it otherwise, it is OEM actions, not Androids.
            Fri13
        • Obvious? No one said it was obvious, only you who wasn't there

          is saying it's obvious.

          I guess I can say that it's obvious Apple would win this, only because it's hard to get the Apple owning, Apple investing jury to damage their most revered brand by voting honestly.
          William Farrel
          • Yep and...

            Jimmy Kimmel showed that many Apple fans can't even tell when their own phone is being sold to them as a new model!

            http://www.youtube.com/watch?feature=player_embedded&v=rdIWKytq_q4
            slickjim
          • unbelievable!!!

            I think we can close this discussion once and forever. iPhone 4S is definitely faster, lighter, thinner than iPhone 4S.
            pupkin_z
          • I still have to ask (and I saw the video) Apple fans, or just...

            'Man on the Street'. I'm sorry, most 'fans' would have known by looking that it wasn't a 5 by too many factors. The simple fact that it's metal frame is still silver and not black is one of them along with the placement of the antenna breaks. Even I wouldn't acknowledge a single one of those asked as a 'fan' (though some of them may have been users of older models).
            DWFields
          • The last guy in the video said he owned a 4S.

            Enough said.
            laequis
          • Just because someone owns an Apple product doesn't automatically...

            make them a 'fan'. I will admit to being more of a 'Fan' as I have used Apple products for over 30 years and personally believe them the most reliable and most functional devices of their type on the market--more from experience than any form of hearsay. I, personally, would have known the difference. But then, I also pay far more attention to the tech world than most users.
            DWFields
          • Because these people know what color the new one is right?

            I don't know anyone outside of this industry who knows what color scheme the new one will be. Most people expect it to look exactly the same as the last model , but with better performance.
            mrefuman
          • Hmmm..

            Just so I'm following you here...

            Are you saying fans would be able to tell the subtle differences between iPhone 4 and 5?

            With that logic in mind, is it reasonable to also assume that these same core consumers of Apple products would also be able to tell the difference between a Samsung product and an Apple product (which are FAR less subtle)?
            PolymorphicNinja
          • As I've said more than once...

            The average consumer simply couldn't care less. They don't buy for specs; they buy for functionality (not necessarily 'features').
            DWFields
          • funny but says more about the people than the phone...

            Do the same thing with a Samsung and I bet you get the same result!! People are just funny :D

            For the record though, I own an iPhone, but I am strongly considering moving away. I don't intend to keep giving my money to a company that registers bogus patents and then make money off the so-called infringers (I just made a new word...). Even though technically and legally correct, it doesn't make it right. The great thing is that us users can vote with our feet.

            More fundamentally, the US patent system seems to be broken. How ever did MS get Windows TMed? Windows are general things, used in everyday language, and you're not supposed to be able to TM general terms or words...

            In a similar way, Icons have been around for a long time, they're all more or less square and fit onto grids, that have been around forever. Now that Apple has patented it, are they also going to sue MS, etc etc??? Back-dating over how many versions of Windows?

            It's what happens when you adhere to the letter of the law and forget the spirit it was written in. I've seen that somewhere before ;)
            Bazzie
          • First you have to assume the patents are bogus

            And since they were issued, then at least somebody thought they were valid. Only when they are challenged and revoked are you going to definitively say they are bogus.
            DWFields
        • Okay Mr Ignorant

          Clearly, you cannot see beyond the RDF Eminating from your iOS devices so, I'll ask you this...

          How is it that Google / Motorola had many of these same features and the judge clearly told them they are not allowed to use patents to limit competition? Yet that same court system whacked Samsung for just that?

          Could it be because Google and Apple are both American Companies and Samsung is not?

          I have a Galaxy Note, I'm very pleased with the phone and have no desire to buy a phone that does less! If Apple had their way, we would be forced to buy a phone that does less, the iPhone 5! I guess Jobs wanted Orwell to be right all along huh?
          slickjim
          • Absolutely wrong!

            If Apple had their way you could still buy whatever phone you wanted as long as it didn't infringe on Apple's IP. Of course I am sure you would be more than happy if any of Apple's products were banned because they infringed on somebody else's IP but when the shoe is on the other foot it's anti competitive right?
            non-biased
          • If Apple Wins

            They may very well become the only viable smart phone on the market. If that happens I will make do with with a dumb phone. These anti-competition lawsuits from apple have left a bad taste in my mouth. I will never consider buying an apple product again.
            cuulblu