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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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: 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