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Monday, August 27, 2012

Is either Apple or Samsung to be, or not to be?

Would Shakespeare have been an Apple fanboy?I'd previously read or heard most of the notions that Rich Karlgaard advances in his Wall Street Journal op-ed titled "Apple's Lawsuit Sent a Message to Google," but he's done a service nonetheless by polishing and distilling them nicely. As he puts it himself, this "techno-Shakespearian story is entertaining," and he makes a reasonable case that it's nevertheless "bad for the phone-buying public."

I agree completely with him that both from a business perspective and a legal one, it was strategic genius — albeit fairly obvious — for Apple to sue a foreign-based company, Samsung, rather than its real target, American-based Google, for pretty much all the reasons he explains.

I think his essay errs, though, in its tacit assumption that foreign companies like Samsung are always and forever going to be nothing more than proxies — pieces to be moved on the global chessboard by American technology leaders like Apple, Google, and yes, Microsoft. Of course, Samsung will appeal this latest American jury verdict, and it has a decent chance of winning on appeal. But that will take many months to play out. Does anyone doubt that in the meantime, Samsung — and many other similarly situated companies — will redouble their efforts, and probably more than redouble their budgets, to develop their own software prowess and capacities to augment their demonstrated manufacturing prowess and capacities?

And Mr. Karlgaard is absolutely right to note that there's a Shakespearian quality to this long-running and ongoing drama. But they're not re-running the same play every night, or even relying upon a static cast of players. Yes, in the 1980s it was already Apple versus Microsoft, and yes, those two still compete fiercely today. But there was no such thing as Google or Amazon then; they parachuted in seemingly from nowhere, but no one today can dispute that they've become formidable competitors who aren't shy about entering new lines of business. And quite a few dominating companies from the 1980s have been swallowed by others (as Google swallowed Motorola and HP swallowed Compaq), or have become competitively and technologically irrelevant (like Xerox and Kodak), or have simply disappeared altogether (like DEC and Wang).

In short, I think both plot and players are even more unpredictable and exciting than Mr. Karlgaard gives them credit for. So bring the house lights back down, and on to the next act!

Posted by Beldar at 12:50 AM in Film/TV/Stage, History, Law (2012), Web/Tech | Permalink


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(1) Neo made the following comment | Aug 27, 2012 7:25:46 AM | Permalink

The unanswered question is whether or not the lifespan of a patent (17 or 20 years) is now too long (copyrights are already ridiculous) ?

(2) Gregory Koster made the following comment | Aug 27, 2012 11:11:28 AM | Permalink

Dear Neo: Great comment. Take it one step farther: length of patent life hasn't changes since the adopting of the constitution. Copyrights have. That's a sure sign of what is deemed more important to a modern economy. But you are right: it is grotesque that Mickey Mouse can still be copyrighted by Disney, while the transistor has long been part of the public domain.

Sincerely yours,
Gregory Koster

(3) DrJ made the following comment | Aug 27, 2012 9:01:58 PM | Permalink

An appropriate patent term really does depend on the field. Twenty years' protection in pharma or medical diagnostics or devices is very short, owing to the extensive government hoops and the huge capital amounts that are required. Software or computer hardware may differ.

And Beldar, welcome back! Your blog has been quiet for some time, and it is good to read new things from you.

(4) Bruce made the following comment | Aug 28, 2012 11:37:28 AM | Permalink

The unanswered question is whether or not the lifespan of a patent (17 or 20 years) is now too long (copyrights are already ridiculous) ?

Prior to the late 1990s, term was 17 years from date of issue. It was changed to 20 years from original filing date - but keep in mind that it most often takes more than 3 years from filing to issue, and if you have continuations, divisionals, etc., their term is limited to the 20 years from the original priority date, which may be years and years after the filing date of the later applications. Which means that term is often quite a bit less than the previous 17 years.

Things are maybe even worse - because the original 20 year term legislation put limits on how much time the USPTO could spend at different points of prosecution. But, once the USPTO has forced the applicants to file an RCE (Request for Continued Examination), this stops. Making this worse, the USPTO has significantly downgraded the priority of RCEs, resulting in maybe another year or so of prosecution every time the applicant has to file one.

The bottom line then is that a lot of patents are now issuing with well under 17 years of actual term. I have seen patents issue with less than a decade - which means that more than a decade was spent in prosecution between when the priority application was filed and the patent issued.

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