

The Next Step in Apple's Thermonuclear War Against Android - esolyt
http://www.groklaw.net/article.php?story=20120902120442355

======
spaghetti
I'd love to see control of the "mobile space" be in the hands of individuals
instead of large, for-profit and often evil companies. Clearly mobile
computing is here to stay. If it wasn't then companies like apple and google
wouldn't be fighting so hard for control.

Imagine a decentralized app store where people can make a living without
having to deal with apple's ridiculous review process or ideas of what's
appropriate. I suppose the major challenge is getting all the non-geeks into
this ecosystem and away from iTunes and other privately owned app stores.

This is obviously wishful thinking. However given the importance of mobile
computing going forward I think it's worth imagining the best mobile ecosystem
possible.

~~~
ender7
The huge, HUGE advantage that the App Store brings to the average consumer is
a feeling of safety. An app installed from the App store:

\- Can be uninstalled easily, and leave no trace behind (remember "Register
cleaners"?)

\- Cannot interfere with other apps

\- Cannot run in the background and spy on your surfing habits

\- Cannot steal your credit card information and upload it to Russian mafia
servers

For a long time, the standard geek response to these problems is "that's the
user's problem -- they should be more careful about what they install". The
response appears to be "fuck you, I don't want to waste my time worrying about
whether this purple monkey screen saver will secretly empty my retirement
account."

If you can find a way to make this "free and open" system also _safe_ , then I
think you'll have a winner.

~~~
esolyt
All of them are solved by sandboxing and permission mechanism.

"Fuck you, I don't want to waste my time" is actually the response developers
should be giving to Apple when they are made to wait more than a month for
their app to be reviewed and finally it gets rejected for a political,
ideological, arbitrary, or personal (competes with an Apple service) reason.

~~~
fpgeek
Much as I love Android, and much as the Android team has done yeoman's work on
this front...

Sadly, today, the more accurate statement is all of them are theoretically
solvable by sandboxing and permissions mechanisms. Getting those sandboxes and
permissions where they need to be at a technical level, explaining those
permissions to users in a way they can understand and make decisions based on
and making the overall framework as transparent and usable enough is very much
an unsolved problem.

~~~
esolyt
What I meant was, this is the correct approach. The implementation is not
necessarily perfect. But in my opinion, it is much better than Apple's
approach, which actually gives the world a bigger problem: A company deciding
what software I can install on my device and what software I cannot.

~~~
Tyrannosaurs
My preference is that Apple keep doing what they're doing but also take a less
aggressive approach to jail breaking phones.

As someone who gets dragged in to sorting out the IT issues of friends,
family, neighbours and who knows what else, there is a lot of benefit to the
Apple approach at what is for most people, little real cost.

The problem is the absoluteness of their position. I don't mind if they make
people jump through hoops to jailbreak phones, I don't mind if their default
support position for phones is to restore them to factory settings before
they'll even look at it, but I think allowing for the possibility of jail
breaking as an accepted thing would be good for both choice, and making sure
Apple stay honest.

------
verganileonardo
> These Four Horsemen of the Android Apocalypse are patents for what Apple
> claims are “key” product features -- “Slide to Unlock,” “Text Correction,”
> “Unified Search,” and “Special Text Detection.

Wasn't "Slide to Unlock" invalidated in the process against HTC?

~~~
w1ntermute
And didn't Google devise a workaround for Unified Search in a week or so?

~~~
AnthonyMouse
That's the thing: It doesn't really matter. Take any given software patent and
throw a research team at it, chances are you'll find invalidating prior art.
Take any given software patent and give it to a CS major, chances are you'll
have a work-around inside of a few days.

But that's not the problem. The problem is that you never know which patents
will be asserted against you, and by that point the horse is out of the barn.
You've now got to spend millions of dollars on lawyers for _years_ to
invalidate their improvidently granted patents. And the work-around doesn't do
much good when they're asking for damages for past infringement on the
millions of devices you've already shipped or suddenly having your trucks
stopped at the border (and interrupting your business and straining your
relationships with retailers) during the period before you can retool your
supply chain to incorporate the work-around. Especially when the second you
release a new product with a new set of work-arounds, they come at you with a
new set of patents.

Software patents have got to go.

~~~
chii
I think there is a middle ground - patents, if done "properly" is useful.

Perhaps, firstly, you have to have a more vigorous application process that is
peer reviewed (where peers are basically your competitors!).

Secondly, you have to declare the valuation of the patent. This is then taxed
by the government, similarly to property tax. If you decide to value your
patent at $0, then you pay $0 tax.

The valuation of the patent determines the damage payment.

This combination means that you can't just keep a patent indefinitely, waiting
for someone to infringe and then extract money from them. Peer review means
that you can't patent something that will stop your competitors from
continusing business. Real innovation will get thru because your peers will
have no case of prior art, but "bad" patents won't get thru as your
competitors will search hard for prior art to stop you (aka, incentives are
aligned amongst the parties).

~~~
AnthonyMouse
>Secondly, you have to declare the valuation of the patent. This is then taxed
by the government, similarly to property tax. If you decide to value your
patent at $0, then you pay $0 tax. >The valuation of the patent determines the
damage payment.

This sounds more clever than it actually is. Think about it:

First of all, this makes the patent system totally worthless to the little
guy. If Joe Inventor has the Billion Dollar Idea, he can't value it at a
billion dollars even if it is worth that much because the first year's taxes
would bankrupt him before he can recoup the money. But if he values it at
substantially less than that, the big guys come along and infringe and just
pay damages that are way less than the value of infringing.

But you can't allow the patent holder to periodically revalue the patent and
change the amount of tax being paid on it because that breaks the system,
since the big guys could just value all their patents at $0 until they see
someone infringing, then revalue them at a trillion dollars the day before
they file the lawsuit.

And the alternative of not allowing revaluation ignores what a crap shoot
patents are. Sometimes you don't know that something is going to take off
until it does. If you have five or ten genuinely good ideas but can only
expect one or two to gain market acceptance, and you don't know which ones at
the time of filing, you can't value them all at a billion dollars or you'll be
crushed by taxes, but if you value the wrong ones highly then the patent
system isn't providing you with the desired incentive because when the
infringers come around you won't be able to collect sufficient damages to
deter them.

More than that, think about what you would be doing to patent litigation:
Valuing an individual software patent at a billion dollars is insane for
anyone because of the taxes that would be due on it and because of the
potential of someone finding a work-around that makes that valuation
worthless, so instead the strategy (much like today) will be to collect many
thousands of patents, valued in the low millions individually, but instead of
asserting five or ten in litigation, plaintiffs will have to assert a much
larger number of them in order to arrive at the desired amount of damages.
These trials are a giant mass of spaghetti even with five or ten patents, can
you imagine a hundred? So it does nothing to solve the problem of upstanding
defendants being coerced into unjust settlements for fear of being crushed by
litigation costs.

So the taxes thing is not really going to do it I don't think. (And that's
before the Tea Party gets a billion dollar donation from Intellectual Ventures
to go on TV and scream about taxes on innovators, and before the tax provision
gets eaten by all the same loopholes that allow Microsoft to not pay income
tax.)

Which leaves the suggestion that we need a more rigorous vetting of patents --
and I'm all for that, but easier said than done. Peer review probably wouldn't
_hurt_ , but you've got a serious free rider problem. If IBM files for a
spurious patent then in theory Google and Microsoft each have an incentive to
hire lawyers and try to oppose their application, but they also have an
incentive to save money by letting their other competitors do it. And because
patents are bought and sold like commodities, you can't just concentrate on
fighting your own competitors' attempts to get bad patents, because anyone who
is awarded a low quality patent is a potential supplier of them to your
competitors, so anyone who decides they want to subsidize their competitors by
being the first to start policing bad patents in the industry will have to do
so against the world rather than only their own actual competitors. You end up
with a situation where nobody wants to be the first mover to start opposing
competitors' patents because there will inevitably be retaliation, so nobody
does, and all the big players are happier to continue the existing system of
everyone big having an arsenal of low quality patents that in most cases just
get cross-licensed to one another.

It seems to me it would be better to just throw out software patents and be
done with it. No one can even agree whether the existing or proposed systems
would encourage more innovation than they impede, but no one can dispute that
any system of software patents involves the employment of a large army of
soul-crushing patent lawyers with engineering degrees who the world would be
better off if they were set to work doing actual engineering instead.

~~~
chii
A well thought out reply, and i agree with the problems you have stated. Good
point about the first corp that moves to peer review their competitor's patent
application in order to prevent them from getting it. I hadn't thought about
how they might collude.

So may be there isn't a proper solution, because the premise is that the idea
of patents is flawed?

~~~
AnthonyMouse
>So may be there isn't a proper solution, because the premise is that the idea
of patents is flawed?

I don't think the idea of patents is flawed. They work well in certain
industries (namely pharmaceuticals). The problem is that the patent system was
never designed to cover intangible goods. The idea that one single device can
simultaneously infringe tens of thousands of separate patents is an
abomination.

That leaves the problem of how to exclude software from patentability without
causing problems for Pfizer and General Electric, but I think that's coming at
it from the wrong end. Never mind what you can get a patent to cover or not,
just make intangible goods incapable of patent _infringement_. Pass a law that
says that if all you're doing is distributing bits or executing a program on a
general purpose computer, you can't be liable for patent infringement
whatsoever. That should have no effect on the makers of cholesterol medication
and jet turbines while solving the problem for software developers.

------
othermaciej
Does anyone see groklaw as a credible source any more? They used to have good
reporting, but all I've seen since the Apple v Samsung verdict is spittle-
flecked ranting.

~~~
aristidb
Groklaw has proven pretty reliable in prior cases. Se's never truly impartial,
but almost always quite close to the truth. And I can understand her, this
really is an ugly set of cases.

[EDIT: Fixed gender pronoun.]

~~~
Steko
PJ is a she. Groklaw is often a reference to the whole community though.

~~~
sp332
PJ hid her identity for a long time.
<http://en.wikipedia.org/wiki/Groklaw#Media_controversy> and
<http://en.wikipedia.org/wiki/Pamela_Jones#PJ>

------
dvhh
somehow Apple reminded me of monsanto. Maintain your dominant position on the
market by agressively suing everybody.

~~~
dhughes
Apple reminds me of Scientology, sue everyone who defies us!

------
DanBC
Groklaw links to a BBC interview with the jury foreman.

> we as jurors were sworn to abide by the rules and the stipulations in law as
> they exist today, at the time we made the decision.

Can't jurors just ignore laws that they feel are unjust?

~~~
huxley
It can happen, it's called jury nullification. There's some interesting
reading in the background section of the wikipedia article on it:
<http://en.wikipedia.org/wiki/Jury_nullification#Background>

~~~
philwelch
It's a bit controversial whether jury nullification is an actual right or
whether it's just a side-effect of the fact that juries can't be punished or
held accountable for their verdicts. What's the difference? Well, for
instance, judges tend to instruct juries only to consider the facts and not
the law, and attorneys aren't generally allowed to discuss jury nullification
in their closing arguments. On the other hand, the jury will rule however it
decides, so lots of things from the merit of the law itself to sympathy for
the victim or defendant will factor into their decision.

~~~
patmcguire
It's occasionally upheld by the supreme court, occasionally overturned. It's
defacto legal because it's unprovable. Also, it's worth noting that it's not
exactly a panacea - the two big (in terms of scale) uses of it in the USA were
northern jurors refusing to convict those who sheltered runaway slaves under
the fugitive slave act (good) and the southern jurors who acquitted lynchers
(bad). US link is more helpful
[http://en.wikipedia.org/wiki/Jury_nullification_in_the_Unite...](http://en.wikipedia.org/wiki/Jury_nullification_in_the_United_States)

Judges and lawyers hate it, but at worst it's grounds for dismissal from a
jury, not a crime.

------
adsr
Why would you need bounce back at all? It's one of those things that gives iOS
it's personallity, you could definately make a touch based user interface
without bounce back.

~~~
lowboy
Bouncebacks and inertia scrolling help the user experience because they're
closer to real world behaviour. On a subconscious level, people more easily
interact with something that has a little weight and closer to real physics to
it.

~~~
adsr
It solves some real world problems, but is it really closer to real world
behavior? If I for example flip through a photo album and reach the last page,
it wont bounce back. There are other cues to that, such as the thickness of
the page or if I attempt to flip the last page I will instead see the back
cover etc.

------
alvarosm
They ask themselves why Apple went for Samsung's head. It's pretty obvious...
they don't want an Apple vs. Google. It's much easier to win vs Samsung (a
foreign company, by the way) and thus establish some valuable jurisprudence.
Google was recently said to be getting ready to sue Apple, it's only natural
because Apple's target was always Google and it's now only a matter of time
before we get to that. It's a bit like WW2 when Germany started invading
eastern countries. It was in no small part a preemptive move, because eastern
Europe being occupied by Germany or the USSR was only a matter of time. It
would have been Russia if it hadn't been Germany. We might still see some
preemptive moves by Google before Apple finally sues Google directly.

~~~
ash
> It would have been Russia if it hadn't been Germany.

You are technically correct - Germany invaded Poland first. But German and
Soviet invasions of Poland were just 18 days apart: 1 September and 17
September 1939. All according to Molotov-Ribbentrop Pact [1] signed shortly
before that - on 23 August 1939.

[1]: <http://en.wikipedia.org/wiki/Molotov-Ribbentrop_Pact>

------
some1else
I'm very much against software patents, at least regarding the UI. But the
proposed Bouncebackandforth workaround is how the iOS Photos app works.

------
marginalboy
One can't help but suspect these players are acting in concert, to manufacture
the most ridiculous exercises of technology patent abuse, so as to motivate
the public and Congress to advocate for a reconsideration of the whole mess...

~~~
veidr
I don't think so, because the dysfunctionality of the patent system is working
out extremely well for Apple.

However, I do hold out some degree of hope that the high-profile nature of
these products, along with the self-evident insanity of these patents that
give one company exclusive dominion over basic concepts (rounded rectangles,
pinch-to-zoom) may be enough to make more people aware of how broken the
patent system is.

So while I doubt Apple has any intention other than to keep exploiting the
flaws in the patent system to attack its competitors, if there is an upside to
any of this nonsense, that would be it.

Edit: Even though most of us on this forum probably reserve the most contempt
for patent trolls like Myrhvold, with his zombie horde of non-practicing
entities, I actually think that these cases resonate _wayyyyy_ more with the
non-programmer mainstream audience.

Indie programmers having to pay royalties behind the scenes to some shell
company? For most people, that's not too interesting. The Galaxy Nexus getting
pulled off the market because it can search for things? This is at least
something that people have heard of, can understand, and can see doesn't make
sense.

~~~
fpgeek
> The Galaxy Nexus getting pulled off the market because it can search for
> things?

Absolutely. A _Google_ -designed product getting pulled because of _search_?
Does not compute.

------
001sky
_For those who would like to read them, here are all the Apple patents in play
in this case:

    
    
        5,946,647 (the “’647 Patent”), System and method for performing an action on a structure in computer-generated data
        6,847,959 (the “’959 Patent”), Universal interface for retrieval of information in a computer system
        8,046,721 (the “’721 Patent”), Unlocking a device by performing gestures on an unlock image
        8,074,172 (the “’172 Patent”), Method, system, and graphical user interface for providing word recommendations
        8,014,760 [Part 2] (the “’760 Patent”), Missed telephone call management for a portable multifunction device
        5,666,502 (the “’502 Patent”), Graphical user interface using historical lists with field classes
        7,761,414 (the “’414 Patent”), Asynchronous data synchronization amongst devices
        8,086,604 (the “’604 Patent”), Universal interface for retrieval of information in a computer system*
    

_\- Short form summary of the IP. Useful for reference.

------
Steko
Some companies will have to pay a slightly higher per device royalty than they
had wanted to and/or remove/modify some functionality. It's the Apocalypse!
It's Thermonuclear War!

~~~
nitrogen
Requiring royalties for open source, independently developed software is
Wrong. An attack on Android is an affront to all independent software
developers. Also, Apple has said they are not interested in licensing.

~~~
Steko
"independently developed"

This is a new claim and not one that will find many takers imho.

"Apple has said they are not interested in licensing"

This is far from the truth. They certainly offered licensing to Samsung.
$30/device might sound like a lot but that was a starting point in a
negotiation.

~~~
esolyt
Samsung isn't the only Android manufacturer. It also isn't the only one being
sued by Apple.

One of the benefits of Android being open source and free software is that it
encourages small players to start competing with giants by giving them a nice
OS and the ability to tweak it. This is why we can have smartphones, tablets,
netbooks, smartwatches, ski goggles, cameras running Android. All designed and
produced by many different companies, from multinational giants to small
Kickstarter startups. No worries though. Soon, every one of them will realize
they can get sued for "text correction" and how naive they were to think that
they can just build upon open source and free software to realize their goals.
As a startup should you care? Absolutely not! You should simply develop for
iOS only, using iMacs and Macbooks.

~~~
da_n
If you don't like Apple Open WebOS and MeeGo are interesting open options, I
hope these will gain traction. I have never been a fan of the whole Dalvik/JVM
architecture on Android. The update mechanism has always been especially
shitty as well, every single device seems to need massive amounts of driver
tweaking and customisation making the whole point of Java and its high
portability rather pointless.

~~~
kalleboo
> If you don't like Apple Open WebOS and MeeGo are interesting open options, I
> hope these will gain traction

And if they gain traction, they will be sued by Apple.

~~~
fpgeek
And, unlike Android, neither Open WebOS nor MeeGo have a sponsor that would
even consider trying to protect them.

If you wanted to see either Open WebOS or MeeGo in the US (rather than China),
Apple's lawsuits have effectively closed that door for the foreseeable future.
No smartphone startup would be crazy enough to wade into this legal minefield.

