Apple vs. Samsung: claiming IP territory

The verdict today before Koh in Apple vs. Samsung inspired me to blog, so I logged in.

And I noticed my last post about Japan and Korea having a disagreement about territory claimed in the sea between them -- a small island that, until we discovered there might be resources in the sea around it, was not worth the trouble to either of them to formally claim.

Claiming territory. That's what this is all about.

Until Apple made it cool, a pocketable computer serving as a portable phone just seemed like a geek toy. That was the best Microsoft could do with it, and it was the best anyone else seemed to be able to do with the idea. (It didn't help that Microsoft was trying to hold the market for ransom and force everyone to use their MSWindows CE/MSWindows Mobile. Microsoft simply has no cachet, except with a certain kind of business or tech geek.)

Undeveloped territory that suddenly gets attention, and everyone trying to crowd into it. Of course, with the free market, one company is not supposed to be able to control an entire sub-market, but, unfortunately, it seems like most companies seem to have the stupid idea that controlling the market is good for profits.

I guess one thing we need to fix before we fix the patent laws is the general lack of understanding of economics among the current crop of managers and board members.

Well, Apple isn't any different. So, when they entered the portable phone market, they wanted patents to club other companies with. Or maybe just to defend themselves. But they couldn't get real patents on core technology like the radio stuff, because they didn't have any real research going on there. I guess that's why they resorted to the biggest flim-flam since the original pyramid scheme, design patents.

Software patents are bad. You aren't supposed to be able to patent ideas. Well, what idiots thought design (art) patents would not be patents on ideas? I guess, because "every" other country (that doesn't understand freedom) has them, the US must have them, too.

Uhm, yeah. Anyway. The rectangle with rounded corners and a screen mostly filling one face had not been tried in the last couple of years of Microsoft's fumbling efforts.

Not that it wasn't obvious. It had shown up since the earliest attempts at envisioning a portable computing/communication device. Plenty of prior art. But Apple took out the design patents, since they are available in the US. Never mind that they were only incrementally, non-uniquely different from other designs. Shame on Apple, but they've been trying this since the first look-and-feel suits.

Shouldn't look-and-feel be trade dress?

And since when is trade dress anything like patent? It's supposed to prevent fraudulent marketing, not enable it. And why a cluttered screen with bog-stock icons in a bog-stock grid should be considered anything close to trade dress, much less subject to design patent, is beyond me.

Except, there it is: land grabs. Find any piece of ground that has not been claimed, and stick your flag in it, so you have more room to set up your armies on.

Free market competition is not supposed to be a substitute battlefield. Destroying people economically is socially destructive, whether you push them off their farmlands or push them out of their market. Competition is good, but not constant all-out wars.

So Apple used its cachet to make the obvious obvious in the market for portable communication devices, and the market took off. Was there anything special about what they did? Was it just Apple's cachet?

Well, especially compared to Microsoft's offerings, yeah, there was something special.

So what was it? And shouldn't Apple have the right to claim IP on it?

Well, first, let me ask you: Where did Apple's cachet come from?

No, cachet is not just magic that no one can understand. Until you understand cachet, you have no business claiming to be a free person.

Let's dig way back to the Apple II. What was it?

Everyone else was business as usual. The two Steves said, look at the power in this thing. Desktop calculators? With these CPUs, we can put power in the hands of the people.

Jobs had something a little more than that in mind, but he understood from the outset how benevolent tyrants establish charisma and then use that to establish power. He had some understanding of the necessity of the appearance of freedom in supporting any sort of political movement, and he understood that economics is politics.

Power to the people.

What, you thought the hippie movement was over? Just because empowering people the wrong way always works for a little while and then doesn't any more?

If you're confusing power to the people with the hippie movement, you're missing the point. Empowering people, especially people who have been dis-empowered by whatever systems and institutions have been established before, is exactly how the charisma is set up.

Empowering people tends to buy their loyalty. Establishes charisma. Builds cachet. (If this idea offends you, maybe you need to re-think your reasons for hanging around the water-cooler or reading blogs and such.)

So, power to the people. For a little while. Then the people with the charisma tend to get to thinking they know more than everyone else. The reality distortion field gets to the source of the field. Then they start abusing their cachet for power. (What happened to the power to the people thing?)

Prices go up. Tech doesn't move forward enough to justify prices. Products aren't competitive any more. And that's not really all that evil, but the fear of losing the cachet inspires attempts to shore it up with external forces. Like court action. Or back-room deals. Or fake standards constructed too early. Or outright sending thugs around when people don't do what you want them to.

Look at Gates and Co. Did the same thing. Power to the people, except in their case it was power to some of the ignored people with moderate amounts of money -- lower level managers. Sure, mice and UI windows were fun to play with, but it was the market for a machine that could do lots of calculations cheaply that was going begging.

And, of course, Gates and Co. followed the same curve once they got their hooks into the cheap OS market. They knew more about the market than their customers, and they knew they must have the right to charge for it.

Usually, this would be a recipe for disaster. But trying to catch up with the Mac slowed their control ambitions down, long enough that they could establish a near monopoly among lower-level management before they bared their fangs to the general public.

And, when they bared their fangs, surprise! Customers ran away.

No, Bill, Nathan, Steve B., et. al. When you know more than your customers, they have no obligation to agree with you. Not in a free world. Freedom to innovate is not just for you.

That's why everyone was biding their time, waiting for the next mini-Napoleon to arrive on the scene. That's why you had to resort to even back-room deals, fake standards, market dumping, and so many other anti-competitive tactics to stem the bleeding. At the time, patents were still not usable for this kind of strong-arming, so you weren't really focused on those. (Missed a move on this chess board, did you Bill?)

Then we had the return of Steve. (Jobs, that is.) (Didn't I see this somewhere in an apocalypse?)

He had learned some lessons out in the wilderness. He had become much better at listening to the customer.

And he had Power to the People, by means of Free Software.

Why Free Software?

Not because you (the customer) don't have to pay money.

Because you (the customer) are free to do what you want, if you're smart enough or have friends who are smart enough who will show you how. That's empowerment.

So, what he gave us was FreeBSD plus some stuff they learned while messing around with Linux and Mach, to make the almost open Darwin OS, and add some stuff they knew from the Mac to make the semi-open Aqua instead of X-11, and they had a new winner:

Mac OS X, brought to you by Darwin OS and Apple. (And the Apple Public License, which was almost free. Lots of freedom, to attract the customers. But Apple was busy behind the scenes, putting patents anywhere they thought a patent might fly. Claiming territory. Making sure the freedom to the people could be called back when strategically necessary.)

A little power to the people, and (relative to Microsoft's mess) much better security. And it could make much better use of the power of cutting-edge semiconductor than their old classic Mac OS.

Almost open. Almost free.

Shoot. MSDOS was almost open. So was MSWindows. Such systems are almost always almost open when the new Napoleon on the block is getting his start. It's a necessary part of the pattern.

One lesson Jobs learned was not to rest on his laurels. (It's not the right lesson, but he learned it.) So, before Mac OS X went stale, he started working on iOS.

And iOS was almost open, too. $99 a year for the developers' kit and almost anyone could add the application they wanted to it. And if you behaved yourself well, you could make apps for others, and Apple would let you in their walled-garden of an app(lication) store.

Yeah, not nearly as open as Mac OS X, but there actually is a point to it. Sort-of. We don't, as a culture, understand security well enough for real security to sell on the market, but there is a demand for it now. So policing the market for iPhone apps seemed to be the alternative expedient.

Nothing new here. History is repeating itself. Over and over and over and over and ...

But when the one-and-only walled garden is the only alternative, almost-open is no longer open. And the expedient is only excusable until it becomes a system. (Which is one of the security lessons we aren't learning.)

You don't continue building up the walls of the walled garden, and you don't try to shut off the outside world. That's the kind of knowing better than your customers that has always been destroying big companies a little at a time. (And Microsoft wasn't the first, of course.)

You enable the outside world, and you build bridges between that world and your walled garden, if you have to have a walled garden. That's what keeps your market healthy, active, vibrant. That's what keeps the money moving.


That is why Android is so big.

Not because anyone copied anyone. Round corners on a rectangle, common icons, and a cluttered (Ick! she called that design?) home screen do not constitute any meaningful technical contribution to the state of the art. Best common practices. Lowest common denominator, is what that is.

Android is so big because it's free. Just like we are supposed to be.

Apple, somehow you induced the Honorable Judge Koh to force the trial through on a torrid pace, so that you would just have time to strut your stuff, but Samsung would not have time to pick apart all your thinly-veiled conceits, presentations borrowed from the boardroom, which you so convincingly presented to shore up your improbable claims to "innovation", whatever that has to do with anything.

Samsung did have enough time to show the illogic in your arguments about the iPad being so wonderfully innovative. That's why the decision went their way on that one and not on the phones, where they didn't have time. (I think I would have focused on tablets, too, in their place, by the way.)

So you won one suit.

But you cannot patent cachet. You cannot use cachet to prevent the next guy from his turn for long. The moment you try controlling people's opinions instead of giving them reason to have favorable opinion, that's the moment you start destroying your cachet. It's like using your thermonuclear bombs in your own backyard.

If there had been more time for everyone, Apple's arguments would have all run out of steam, and Samsung's would not, because Samsung's arguments had substance. And pretty much everything would have gone against Apple in this trial, had Samsung been allowed to make all the arguments they were ready to make.

There once was a normal world in the US of the previous century, a "half hour of silence", if you will, in which this kind of self-defeating behavior on the part of a corporation was relatively quickly rewarded with the natural consequences. In such a world, Steve Jobs's alleged mission to Tim Cook might have been Steve making sure the behemoth he constructed undid itself when he was gone.

But that world was altered significantly when thoughts became patentable.

I don't know whether Apple will buy out Microsoft or vice-versa, but it will be because none of them can figure out a way to keep people buying their latest junk. Because they rely on "intellectual property" instead of on service.

I'm not sure whether Google and the Android sub-section of the communications industry will stay around to keep the facade of competition in place, or whether some Congress-person will find some convenient conceit to de-fang the anti-monopoly laws to allow the mergers.

Maybe the mergers into one company to replace Bell's monopoly will happen some other way, but they will happen. And I'm concerned that this time, the communications monopoly/bureaucracy will not be nearly as benign as in the days of Bell.

This whole case has turned Apple's history into yet another exercise in how to destroy freedoms, and how to destroy a market and one's own place in it.

I would like to hope that the honorable Judge Koh could re-consider the outcome, comparing the results relative to tablets and phones, and declare a mis-trial, ordering a new trial with plenty of time to let Samsung show the whole evidence letting Apple's brass display their corrupt point of view for exactly what it is. I would like to hope that a higher court would see through the mess clearly and declare a mis-trial, instructing the lower court to give the legal teams all the time they need to shoot themselves in the foot or not, as the case may be.

But the US, itself, is busy doing the same wrong things Apple has been doing. So it's not a big hope.

Real freedom is scary, because we can't give up the desire for something tangible to depend on.

We know this whole big rock we live on is in free-fall, orbiting around our Sun, but cannot see how our own economic existence is the same. We are all in economic free-fall most of the time.

Just imagine if someone who could do such a thing decided the Earth had to suddenly quit its free-fall.

Which is worse, free-fall, or the inevitable alternative -- the sudden smack when ballistic objects collide?

We don't need that kind of control, we don't really want it, if we can only believe in reality, and put the lust for power over other people behind us.

And that's what Free Software is really suppose to be all about.