Yesterday's news that courts had ruled against HTC in favor of Apple was a tidy little victory for Apple. But HTC is just an initial skirmish in a much larger fight. The real war is against Android, and if Apple wins that, we'll all lose.


The iPhone was like nothing that came before. And Apple should be able to protect its innovations and intellectual property. But the Cupertino Crew doesn't just want to do that; it wants to kill Android. It wants Google's mobile OS to go away. No settlements. No licenses. Dead. Jobs said as much, very explicitly.


There are two avenues Apple can take to achieve this victory: the marketplace and the courts. I'd be all for Apple winning fair and square in the marketplace. It's okay for consumers to decide the victor in this fight. But it's not okay for a handful of judges and lawyers to dictate the direction of technology.

For Apple to win in the marketplace—and I mean total dominance here, the kind of thermonuclear war that an apoplectic Jobs described in Walter Isaacson's biography—it would require both innovation on a massive scale, and real price competitiveness.

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Realistically, that's not going to happen. It's already impossible, at least in the next three years. Android's foothold with consumers is already too strong. Its phones are too inexpensive, and Google and its device manufacturing partners are too committed to Android for it to fail completely.

So that leaves the courts, where Apple keeps pressing its case—largely against device manufacturers. That's not okay. The patent system is broken. Deeply, and profoundly so. The system that was created to foster and protect innovation, now serves to strangle it dead. Apple has real innovation. And real invention. So why act like a cheap patent troll, taking advantage of a body of under-qualified legal professionals to make decisions about which technologies consumers will be able to use? Does that bother anyone else?


Granted, the iPhone was a sea change. So was the iPad. And Apple ought to be able to protect the innovations and intellectual property that set those devices apart. If Apple was only competing on iron-clad patents—if it was just forcing its competitors to think way out side of the box, that would be great for innovation. But it's not. Apple is playing the same stupid games everyone does in the patent wars today.


A little bit about patents: For something to be patentable, it must be (or at least it should be) novel and non-obvious. You should not be able to find existing examples of it in prior art—in other words, when you look at the history of similar products, whatever you're patenting needs to be unique.

Now, certainly, some of Apple's good stuff is novel. No one had ever seen anything like the iPhone prior to 2007. Yet clearly some of the things Apple is gunning to protect are, well, obvious.


What Apple won the rights to in this most recent HTC case, was basically a patent on the act of recognizing patterns and acting on them—like when you tap on a phone number in an email to launch your dialer and make a call.

Thing is, Google was recognizing numerical strings (including phone numbers) and tailoring search results to them long before the iPhone came out. Dating back to at least 2006 (maybe earlier) you could enter a UPS tracking code into Google, and it would parse that number, ping UPS and return tracking information at the top of the search results. It would do the same thing with phone numbers. It basically did everything the iPhone did, short of make calls.


Was it non-obvious for a mobile phone to do what a search engine was doing? I don't know. I certainly think it's debatable, yet this is the issue that Apple just beat HTC on.

Likewise, the iPad also had many novel features—like that genius subtle backside curve that makes the device so easy to pick up off a flat surface. But if you look at what Apple wants to get Samsung to drop—the bezel and the rounded corners and the rectangular shape and even the color—it's clear that Apple wants Samsung to try to make something that goes against good design principles established well before Apple rolled out the iPad.


I think a lot of this can be blamed on Apple's past history. It lost big in the courts once before. And it's determined not to do so again. In some ways, Apple is becoming the George Wallace of technology companies.

In 1958 George Wallace lost the Democratic gubernatorial primary in Alabama to his opponent John Patterson, who campaigned on a more virulently racist pro-segregation platform than Wallace had. In response, Wallace said he'd never be out-segged again. Nor was he. In 1962, Wallace stormed into the Governor's office and national stage on a campaign of "segregation now, segregation tomorrow, segregation forever."


Apple's Wallace moment came in 1994, when it lost a massive legal battle after the courts ruled that it could not prevent Microsoft and HP from shipping computers with graphical user interfaces that used the desktop metaphor. Apple argued that its copyrights were being violated, but the court decided Apple's copyrights weren't afforded patent-like protections

(Of course, it didn't help that Apple wasn't the first company to ship a computer with a graphical user interface, mouse and a desktop metaphor. That was Xerox, which had all that on its Alto. In fact, the original plan for the Macintosh business unit was written surreptitiously on a Xerox Alto during off-hours at Xerox PARC. So it goes.)


But something changed in between the time the Macintosh was released in 1984 and when the iPhone rolled out in 2007: software patents. They weren't widely applied until the 1990s. This happened to co-incide quite nicely with Steve Jobs' return to Apple. And by the end of the first decade of the twenty-first century, it was game on.

And so, in 2007, when Steve Jobs announced the iPhone, after scoring big points with the crowd on the iPhone's features, he did a little endzone dance for the competition, crowing that the company had patented the Bejesus out of its fancy new phone. It had learned its lesson in fighting Microsoft on copyright rather than patents, and was clearly determined to out-patent anyone else in the then-nascent smartphone market.

Now we're seeing the fruits of those patents. They've afforded Apple some significant victories. But if you look at the past as prologue, as Apple seems to be doing, I don't think it's so clear that it would ultimately be good for Apple to kill Android in the courts. And it certainly won't help consumers.


Try this thought experiment: Imagine Apple had been successful in its suit against Microsoft. Imagine Microsoft had been prohibited from shipping Windows 2.0 or Windows 3.0—or, by God, Windows 95—without licensing the hell out of it from Apple. Where would we be?

Without Windows there to pressure Apple to Build Something Better, things would be very different in Cupertino today. After it lost its case with Microsoft and saw its market share dwindle to nothing, Apple had to innovate like crazy.


Had Apple won, it never would have had to transition from the System 7-era to Mac OS X. It never would have had to buy NeXT. It never would have had to bring prodigal son Steve Jobs back into the fold. Without Mac OS X, there would be no iOS. And without iOS, no iPhone, no iPad.

George Wallace used segregation as a bludgeon, quite effectively, to win elections. But today, it's clear that he ultimately injured himself, Alabama, and the nation as a whole for very many years to come.


I'm all for seeing Apple defend its intellectual property. But Android is a healthy force in the marketplace. If Apple can destroy it there, more power to Tim Cook and company. But if Apple beats Android in the courts rather than the marketplace—if it out-segs Google instead of out-innovating it—that may be great for Apple, but it will be bad for society, bad for technology, and ultimately bad for Apple.

And of course, the great irony is that so much of the amazing innovation that Apple pulled off over the past three decades can be traced back to its willingness to swipe ideas from Xerox. Steve jobs was fond of quoting Picasso, saying "good artists copy, great artists steal." If Apple does succeed in crushing Android in the courts, where will it get its next great idea? My guess is that it won't come from a lawyer.