Apple and Samsung butt heads over patents

Marketplace Staff Oct 13, 2011

Apple and Samsung butt heads over patents

Marketplace Staff Oct 13, 2011

Kai Ryssdal: The technology news of this Thursday comes to us from Down Under. An Australian court has sided with Apple in a patent lawsuit against Samsung, and whether Samsung’s new Galaxy tablet is too close a ripoff of the iPad.

Seeing as how patent cases can be dense on the best of days, we’ve called Doug Lichtman — he’s a professor of law at U.C.L.A. — to help make it make sense. Doug, good to have you with us.

Doug Lichtman: Delighted to be here.

Ryssdal: Give us, in as layman-like terms as you could, the nuts and bolts of this dispute.

Lichtman: Sure. Apple basically is on the warpath. They’ve got a lot of patents, they’ve got a lot of other intellectual property, and they’re going after Samsung and they’re going after HTC, because they’re very displeased that Samsung and HTC are using the Android operating system to make me-too phones, which is to say they’re making me-too phones that are phones that look like iPhones and to the consumer are almost indistinguishable from iPhones. And Apple doesn’t want to compete head-to-head with itself.

Ryssdal: Is this — since you mentioned the Android operating system, which is made by Google — is this all a proxy for the Apple/Google thing?

Lichtman: It is, in largely. Apple could go after Google and put pressure on Google to change Android to change these downstream O.E.M. manufacturers.

Ryssdal: O.E.M.: original equipment manufacturers.

Lichtman: Absolutely. What Apple’s choosing to do instead is to go after Samsung and HTC directly, because they’re the ones that are making the product, they’re the one that could be pushed to change these products. And so they don’t have to go after Google, although clearly it’s Android that is making possible this problem.

Ryssdal: There is a not insignificant tit-for-tat aspect to this, right? Apple’s suing Samsung, Samsung is suing Apple and everybody’s suing everybody else over these patent things, right? Is it eventually going to end some place?

Lichtman: It will. The analogy I use is it’s like a nuclear arms race. So Apple has a lot of patents, Samsung has a lot of patents, Google is out buying patents — everyone is getting ammunition to fight. And ultimately, all sides will realize that they can only go so far. If they push this too far, they can each hurt one another on the ground — stopping products, losing market, angering customers. At some point, you get to mutual assured destruction.

Ryssdal: Does either side have the edge here?

Lichtman: I think Apple has an edge, and I think Apple has an edge for two reasons: one reason is they have phenomenal patents. Yes, Samsung has a lot of patents, but Apple has these wonderful patents on the basic ideas behind an operating system. And that gives them leverage. If you make an operating system today, you need to cut a deal with Apple. In addition, Apple also has a little bit of an advantage because Samsung copied slavishly — the way it looks, the shape, the way it works, the way the icons are laid out, you name it. There’s copying there. And so in addition to the patents, which already were very, very strong, there’s this intuitive easy story that you can tell a judge or at the end a jury, saying ‘look, they copied us down to a level of detail that’s just not acceptable.’

Ryssdal: What happens now? There’s a hearing today in California on this same issue — Samsung now can’t sell into the Australian Christmas tablet computer-buying season. Now what do we do?

Lichtman: I think this ends soon. But what’s been really interesting is that Apple has pushed this really far. They’re changing behavior all over in important markets to Samsung. But they have to understand that they can’t push it too far, because Samsung can retaliate. And that’s bad for everybody. Samsung has patents, Samsung has relationships. I think we’re at that moment where both sides are going to come to peace. Apple is going to get the deal it wants, which primarily is differentiation — stop copying so closely. But I think because we’re seeing so many changes on the ground, we’re at either the final moment or the beginning of an unmitigated disaster for both companies.

Ryssdal: Oh good, one of those two choices.

Lichtman: I’m going to take the optimistic view, then, and think that the leadership will realize that mutual assured destruction means you stop fighting rather than you destroy each other.

Ryssdal: Yeah. Doug Lichtman, a professor of law at U.C.L.A. Doug, thanks a lot.

Lichtman: My pleasure.

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