Florian Müller: Apple does not ‘own’ multitouch smartphones and tablets any more than Samsung ‘owns’ phablets

“I can see that those who would like Apple to ‘destroy’ (as Steve Jobs put it) Android in court (for which Apple’s own customers would also pay the price) increasingly realize that Apple does not appear to be, if the results of more than four years of litigation are any indication, a nuclear world power,” Florian Müller writes for FOSS Patents. “There’s a sense of entitlement in the Apple camp and it is centered around the notion that Apple, because it reinvented the smartphone (I agree) and built the first popular tablet in history (I agree, too), has exclusionary rights that give it serious leverage over Google and its hardware partners (on this one I disagree for non-philosophical reasons after watching Apple’s lawsuits for several years). A secondary consideration is that Google’s then-CEO Eric Schmidt stayed on Apple’s board of directors for way too long. I would agree on this one philosophically, but Apple never claimed any violations of trade secrets.”

“Apple deserved, and continues to deserve, a substantial reward for the impact it had on the market. But unless it lowers its prices and accepts lower profits (which its shareholders won’t allow management to do until it’s too late), Android will become so extremely popular that third-party innovation will concentrate on Android the way it did on Windows,” Müller writes. “No single company can match the power of a massive ecosystem, and the Android ecosystem is now by far the most powerful one, with the gap widening further every day.”

“Patent rights are not designed to protect form factors, much less those who are not the first ones to come up with a form factor but merely the first ones to make those form factors popular,” Müller writes. “Four of my six multitouch smartphones, and all of the ones I bought over the last couple of years, are phablets. No small part of the market share that Apple claims Samsung took away by copying is attributable to the fact that Samsung made phablets popular. This, too, wasn’t easy to do. Otherwise it would have been done by others. Even if Apple could have done it, it simply didn’t.”

“It doesn’t mean that Samsung now ‘owns’ phablets in an intellectual property sense. It would have been a better and more consumer-friendly choice for Apple to make a phablet than to sue, as it is doing in the current California case, someone else over phablets,” Müller writes. “Just like copyright law didn’t solve Apple’s problem in the 1990s, patent law won’t solve it in the 2010s. Apple would need a whole new sui generis kind of intellectual property right that is detached in its scope from creative expression (copyright) and inventive contribution (patents) and simply says that if you did something creative (Apple did) and you make some inventive contribution (even if the only exclusive feature you can currently claim under patent law is rubber-banding) and you succeed in the marketplace, no one else has the right to take market share away from you. But that kind of intellectual property right does not exist and never will. Even Apple’s fans would not want to live in such a static world because innovation would slow down while prices would go up.”

Much, much more in the full article here.

MacDailyNews Take: As we wrote on Tuesday:

When all is said and done including any appeals, and just like with Microsoft’s wholesale ripoff of the Mac, Apple is simply not going to get justice. Heartening, no?

Lesson for the kiddies: Knockoff whatever you want, scoff at the “justice system,” make billions from stolen property, and good luck with Karma – hopefully she’ll be at least half the bitch to you that she’s being to Microsoft today.

Perhaps Apple should stop tilting at windmills and, instead of flushing money down the toilet we call “the justice system,” invest in a chip fab and other blatantly obvious ways that would allow them to finally stop doing business with and inflict at least some measure of punishment onto Samsung?

That said, certainly by now, if they haven’t always, Apple understands the difficulty of patenting “iPhone” and enforcing the patents, so it seems their desired outcome of all of this litigation is to continue owning the high-end smartphone market while reaping the highest possible royalties from Android while working to invent the next big thing.

BTW: The most popular platform for developers is Apple’s iOS. Developers tend to like making apps for those with money and the proven will to spend it. Android is an afterthought to be dealt with once you’ve coded and released your iOS app, if ever.

Related articles:
10 European judges found Apple had not invented slide-to-unlock (star patent at Samsung trial) – April 2, 2014
Florian Müller: When all is said and done, despite years of Apple litigation, Android will continue to be world’s most popular mobile platform – April 1, 2014
Apple v. Samsung jury is seated in California patent trial – April 1, 2014


          1. Your extremist, illogical comment is more suggestive of paid shilling than his well reasoned comments.

            A majority of 14 people upvoted such idealogical insecurity? What is WRONG with apple fans?

            No wonder so many people think apple fans are all morons.

        1. “But unless it lowers its prices and accepts lower profits (which its shareholders won’t allow management to do until it’s too late),”

          Here we see a side of Florian that shows his bias. What has profit, margins, etc have to do with IP and Patents???

          He has stated that because Apple was not super successful in court, they must not be right!!!
          But we all know that right and legal matter very little today. Its who did you pay off and how much did you pay.

          Maybe Apple has learned its lesson. It owns the machine hardware to machine metal cases, it will own the majority of sapphire world production (for screens??), it is moving to having full control of CPU Fab and design efforts.

          Making the most cheap crap in the world is not really the way to win. I just bought an Apple iPhone 3G 16 Gig that still works just fine. I am using it as an iPod touch but it has a sim card slot. I can activate the phone inside any time I wish.

          And how many Samsung cell phones from that period that still work great are you familiar with. (It did not get iOS 7 but I think it did get 3 major iOS upgrades … )

          Just saying.

    1. The fact that Mueller is developing an app for Android says it all. His abrupt about face on Apple, its patents, and its litigation is clearly an attempt to gain support from his potential customers. Who would buy an Android app from someone as critical of Samsung and Android as he has been in the past. His about face is transparent and cynical. I have lost any respect I might have had for him and his opinions. I’ll be removing the bookmark to Foss Patents now, as the information there has clearly shifted to partisan blather.

      Now to address the headline “Apple does not ‘own’ multitouch smartphones and tablets any more than Samsung ‘owns’ phablets.”. Apple does indeed own multitouch as it applies to smartphones. They were issued a non-SEP, non-FRAND patent on their touch screen system. They do “own” it in the sense that they have not licensed it to anyone. Fandroids, now including Mueller, who believe that all patents are SEP/FRAND patents to be freely shared without regard are simply refusing to see that reality. We can only hope that the courts eventually do see it. Meanwhile, Mueller has squandered his credibility in order to make amends with his potential future customers. It is a sad thing to watch.

        1. People who buy android apps don’t know or care what the app authors have publicaly said about android or apple. They are not religious, like apple fans are.

          They just want to know whether the app works well and how much it is.

      1. Yes, his conclusions are certainly curious. His saying the Android “ecosystem” is more powerful, certainly doesn’t wash with the data I’ve seen. So much of Andorid are versions old and out of date on phones that aren’t used for anything other than feature phones, and that new apps being developed will not run on???? How is that deemed more powerful that IOS where over 80% is running the most current version of IOS and the version developers are developing on?????

        And his conclusions on innovation are equally curious. Innovation that can be immediately ripped off by fast following copiers destroys the needed return on investment to invest in the R&D necessary to develop these innovations.

        1. Indeed! There is no “Android” ecosystem. There are numerous, incompatible generations and branchings that may as well all have different names. The total of all these is really irrelevant. I wish everyone would stop talking about Android like it is one thing.

      2. When it comes to patent and other intellectual property law, I still think Florian Müller is the expert. He most certainly has articulated the critical distinctions between Standards-Essential Patents pledged on FRAND terms, and patents that have never been offered as such. His position on that does not seem to have changed.

        Now, when it comes to business analysis, I’m not sure I trust him in any way, and I certainly reject the conclusions he reaches here.

      3. Zeke, well said.

        Florian has made a bunch of comments about Apple making too much money, needing to drop prices, gain market share that are not in his field of expertise. That sounds like advertising.

        1. With the rise of Nazism and its suppression of ‘Jewish science,’ most physicists fled Germany in the years leading up to World War II. Heisenberg remained, to work on the Nazi atomic bomb.

          There is some uncertainty which language — German or English — some of us would be speaking today, had Heisenberg succeeded in his weapons research.

  1. Okay! Let’s then apply this concept to prescription drugs. Let the big dogs with all their political clout spend the time and enormous amounts of money developing these wonder drugs. Then allow the Walmart drug companies of the world to copy them at a much, much lower price.

    After all the consumer will benefit! Why should the big dogs feel entitled to all that money?

    1. This already exists. After 20 years (far too long, IMHO), the original patent holder no longer has exclusivity. So drug companies can produce generic versions of those drugs are a far lower cost. Of overuse it doesn’t tend to work this way, because if the drug is popular, the original patent holder will find ways to change the drug just enough to get another patent on it. Just one of the many ways the health industrial complex works against human beings.

      1. You missed his point. All patents expire. Would drug companies spend billions of dollars finding a cure for cancer if the drug could be copied and sold at discount prices by everyone else the next day?

      2. Developing a drug costs tons of money… Thinking up “slide to unlock.” Priceless. Apple has abused the patent system. They are not alone, though. There are tons of other examples. Amazon’s “one click purchasing” is BS too. Apple would have been smart to trademark a lot of these things. Trademarks never expire.

        1. Oh, a breath of fresh air! Thomas, I’m so glad you posted on this page. The legions of Apple Is Perfect religionists on this site depress me.

          They are comparing slide to unlock to the development of a new drug!! It’s insane.

          I question where there should be any patents in software. Software tech evolves so fast, and new ideas can be explored at *such* a low cost, there is no need or benefit for having patents in software.

  2. This is not about Justice. It’s about the Law. They used to be Courts of Justice. Now we call them Courts of Law. And they are not the same thing.

    Justice searches-out and embraces honesty, integrity, honor and selfless character. Law has become a tool to subvert these qualities. Unfortunately, Law is all we have. So the question for Apple is, “How can we make it vastly expensive to steal our IP?”

    The answer, of course, is to use the Law and the Courts and the lawyers (rather than the outcome) to exact exorbitant costs of those who would do so.

    And that is precisely what Apple is doing.

  3. I don’t know what Florian is on this week. But as I always point out:

    Apple requires competition. Deceitful liars and plagiarists need not apply. Culling the scum out of the market is good for everyone, especially the would-be competitors with Apple who are squeezed out of the market because of the dirty deeds of the uncompetitive.

    So Florian: Have a better week.

    1. Apple does not require competition. Who disrupted the iPod with the iPod mini? Who killed the successful iPod mini with the iPod nano? Who is killing the iPod with the iPhone? Who is disrupting the PC market with the iPad?

      1. I agree. Some people strive for “outstanding” because that’s their nature. Competition is not necessary. Apple did not need competition to produce the iPhone.

      2. From a capitalist, free market, consumer benefit point of view: Having competition is consistently required. Without competition, even the best of companies (Apple!) get lazy, jack up their prices, get user-abusive, down the drain.

        Apple, like every company, requires competition. No one requires parasites, such as Samsung.

      3. I have to agree. In a general sense, competition can drive a company to improve the product. But at no point in the introduction of Apple’s groundbreaking products was the consensus opinion “well it’s about time someone shopkeeper up this or that market”. The consensus opinion was that Apple was only going to sell to its “cult fanbase” and never make a dent in the mainstream. All of Apple’s products, as usual, are described as the inevitable direction of technology markets only after Apple’s products and designs are the mainstream.

        Now of course the downside is that we have to hear the insipid caterwauling about Apple not changing the world every 29 minutes. From the same people who never see the future when it’s smacking them in the face.

      4. I agree — competition did not provoke inspiration and genius at Apple — the will to build something insanely great is not a mundane economic spur; it’s a spiritual calling.

  4. What and which Android ecosystem is he referring to? All I see is an ecosystem mess not nearly as well done as Apple’s, nor as profitable and desirable. Who cares if you are selling more of the world’s worst POS tech in a phone if the phone is truly second or third rate?

  5. This seems like a well written and intelligent article. I do not know the history of this guy, but it does not seem to be blatantly anti-apple as he explains in the full article. I cannot see how one company can sue another for copying something that another did not invent, but did make popular. Apple should spend its money and efforts on producing new and better products and continue to break new ground in the Tech sector.

    1. So Apple should produce new products for others to copy right away?

      Well I guess Samsung needs new ideias, stuff like the Galaxy gear has been pretty much stale.

      1. The point is Apple did not invent the smart phone, not slide to unlock nor touch screens. They did a fantastic job in advancing and making popular smartphones, but technology is always evolving and different companies contribute over time to that advancement. Some of these like Apple have been commercially successful, other not but there ideas have been built upon and either improved or marketed better.

        In the future, as in the past different companies will come up with new and evolutionary ideas and others will follow. Apple is no different it will innovate yes, but also improve, copy and build on other peoples ideas too. Thats life and evolution we would not be where we are today without it.

        Bring up Samsung and the Gear is just plain silly and not relevant. However, I will counter with another silly comment by saying under Apples rules if it does bring out a similar watch, Samsung could sue and accuse them of being a “Slavish Copier”

        1. Apple does currently hold the patents on slide to unlock in the US which has yet to be invalidated. The Neonode slide to answer was entirely different, was NOT a touch screen. Apple did INDEED invent the multitouch screen, and the type of modern capacitance Multi-touchscreen patent IS indeed held by Apple, so you are wrong. All phone screens before Apple were resistance and single-touch.

          As to the watch, an Apple engineer was interviewed a couple three years ago and discussed the possibility of an Apple iWatch and Samsung immediately, along with others started to duplicate what that Apple engineer was talking about. . . so, no, again it’s Apple’s innovation being copied. Not to say there weren’t other smart watches predating that.

  6. This paid stooge’s commentary doesn’t warrant an article in MDN, let alone a take.

    He is already soooo burned in the Android/Linux community that not even his claims of developing whatever piece of crud he’s doing (if he’s doing anything all…) for “Android first” is helping him regain any trust.

    Now, right on schedule, he’s turning against the Apple community.

    Pretty much the only ones left are Microsoft who, surprise surprise, he’s actually doing paid “consulting” for – by his own statement.

    1. Actually its good that MDN provides this information. We as Mac users should alway be aware of what shenanigans these people are up to. In this way we can alway pay him or her a quick visit and straighten the fools out. 🙂

      1. I just want to shake him like a child. But that does no good, as such children have already gone bad. Their bold behaviour should not come as a surprise… It is, sadly, human nature, whatever that sorry condition comprises.

  7. “When all is said and done including any appeals, and just like with Microsoft’s wholesale ripoff of the Mac, Apple is simply not going to get justice. Heartening, no?”

    MDN seems to forget that Apple licensed the Mac System Software (including the source code!) to Microsoft for Windows 1.0 “and subsequent versions”. Apple sued over the source code showing up in Windows 2.x and 3.x. Apple claimed the phrase “and subsequent versions” meant Windows 1.0, Windows 1.1, Windows 1.2, etc. but did NOT include any version 2.x or 3.x variant. Microsoft claimed that “and subsequent versions” meant ANY version following 1.0. The court agreed with Microsoft.

    Apple did not patent the Mac interface. Therefore the court sided with Microsoft on the “look and feel” portion of the case. Unfortunately, the “look and feel” part of the case is all 99.999% of people remember.

    Apple’s lawyers were stupid enough to expand the original case, which was originally just about the use of the source code, to include the interface design which Apple had not sufficiently protected. Microsoft’s lawyers made the “look and feel” part the highlight of the case — something that Microsoft could more easily win. The source code part became a secondary issue that just got carried along with the “look and feel” part. The court took that attitude too — and ruled 100% in Microsoft’s favor on all parts including the source code part. Might Apple have won if it’s lawyers had kept it a separate issue? Maybe. We’ll never know.

    Blame Sculley for that entire fiasco.

    Now compare that situation (Mac System and Microsoft) with today’s situation (iOS and Samsung). The two situations are radically different. The iOS interface has been protected (design patents and such) as much as Apple possibly can. In general the courts are finding in favor of Apple.

    Florian Müller goes off on several tangents and makes some absolutely false claims in his rant. And make no mistake, it is a rant.

    For example: Florian Müller is absolutely wrong in his statement “Patent rights are not designed to protect form factors, much less those who are not the first ones to come up with a form factor but merely the first ones to make those form factors popular.” Patent rights are EXPLICITLY designed to protect *specific implementations* of form factors! That is EXACTLY the purpose and intent behind design patents. Florian Müller is just joining the “Apple can’t patent rectangles with rounded corners” crowd. As such he needs to be drowned out by the facts. The design patents are not based just upon idiotic notions of patenting rectangles. The description includes rectangles because the design must be described and one easy way to describe the specific design is to include the fact that a rectangle is one aspect of that design.

    Florian Müller’s move to being 100% anti Apple’s attempts to defend its intellectual property is based upon motivations that are obvious to any who just scratches the surface of his recent corporate interactions and pending actions. Some of these have already been mentioned by others here. More justification for his recent rants will surface before too long. He sold out. It’s that simple.

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