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Does Apple's victory over Samsung signal an early demise for Android?
Jason Perlow says Android is toast. James Kendrick thinks one jury's ruling won't make or break a thing.
Jason Perlow
Yes
or
No
James Kendrick
Best Argument: Yes
Audience Favored: No (88%)
The moderator has delivered a final verdict.
Opening Statements
Android ecosystem will look very different
Jason Perlow: I hate to use my opponent's own words against him, but as it pertains to Apple's design and utility patents, he himself stated that "smartphones must be similar to the iPhone in order to sell" because customers may have strong fundamental biases towards aesthetics and functionality which Apple has hit on in spades. Don't yell at me guys, yell at Kendrick. He said it, not me.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.
Android is simply too big
James Kendrick: The verdict in the Samsung/ Apple trial was indeed a slam-dunk victory for Apple but it isn't going to shut Android down. With 1.3 million device activations per day, Android is simply too big a snowball rolling down the hill.Google does need to figure out an overall strategy to answer the never-ending lawsuits that Apple throws at the Android space. Meanwhile it will be business as usual in the Android smartphone world.
There are too many carriers and OEMs playing with Android for it to shut down. New Android phones are announced somewhere in the world almost every week, Apple threat aside. The fact is there is simply too much money to be made for fear from lawsuits to rule the day.
Tablets are the biggest exposure for Android, as sales have never amounted to much. The recently announced Kindle Fire HDs post a far greater risk to Android tablets than Apple.
The Rebuttal
Great Debate Moderator
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 resourcesJames 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 itJames 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
Closing Statements
Facing the hard realities
Jason Perlow
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 hard 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. And drastic changes do not necessarily bode well for Android's ecosystem.
As my opponent has said in his own writing, 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 monolithic 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 more powerful ecosystems will prevail.
Guess who has the strongest.
Android will thrive just fine
James Kendrick
While the clear case against Samsung is serious, Android is going to continue to thrive just fine. Google may have to adjust the features ruled to infringe on Apple's patents, but if so that's what it will do. There are billions and billions of dollars at stake for the entire system and they won't be thrown away by throwing in the towel.
The only event that would have a chance at shutting Android down is for Apple to successfully go against the core Android OS. Even that wouldn't necessarily spell total defeat for the platform. Google will adjust as companies must when faced with such adversity.
The better argument...
Lawrence Dignan
My verdict will get me pelted with eggs from the Android army, but I have to go with Perlow's argument. It was close and frankly I agree with Kendrick that Android will hum along. I totally agree with Kendrick's argument that Google needs to step up and settle the Apple patent stuff so we can end these OEM sideshows. Overall though, Perlow had a better argument.
Posted by Lawrence Dignan