Apple came close to destroying its business in the late 1980s by pursuing a suit against Microsoft claiming that Windows infringed the look and feel of the Mac desktop metaphor. Apple focused its hopes and business future on this lawsuit, while its market share dwindled. Rather than competing, it litigated. And lost.
Last week, it litigated against Samsung over its iPhone design and won.
The first justifiable conclusion might be that big companies get their way. The second might reasonably be that Apple doesn’t change much: its business model remains aggressive self-righteousness. The third is what everybody knows: patent rules and philosophy are all screwed up.
As for the first point, Apple is not just a big company, but the biggest. And it is not just the biggest American company, but the most American company. It has entered a rarefied brand status in which it is now almost synonymous with American virtue: American as Apple. Its good design sense has become a major point of American pride, if not nationalism.
The brand is a national asset. Apple is AT&T in its pre-break-up from; it’s GM, in its what’s-good-for-General-Motors-is-good-for-the-country stage; it’s United Fruit when it made US foreign policy; it’s Microsoft when desktop computing was transforming the world.
This is about as close to commercial omnipotence as it gets. Its unassailability, its right to be preternaturally aggressive, is built into its share price. We believe in Apple. So let us briefly consider the chance for a Korean company defending itself against (or, perish the thought, challenging) the greatest American company of the age in the eyes of an American jury.
And then, there’s the self-righteousness. Apple is one of the most aggressive intellectual property litigators of all time. Its major moves have not been about protecting precise technical innovations, but about claiming the much softer zone of look and feel.
It sues for brand rather than engineering. It has pioneered a new modern sensibility: taste is what’s most valuable; identity is king. It’s sued about the lower case “i”; it’s sued about the word “pod”; it’s sued New York City over the “big Apple”; it’s sued over using the words “app store”.
This fierce defensiveness might be rightly understood in a psychological sense: Apple itself is based on stolen iconography. There was first the Beatle’s Apple and there was Xerox PARC‘s desktop design. Apple’s self-righteousness masks its guilt. (It may be sheepish, too, about being more of a marketing organization than a technology company.) What’s more, it knows better than anybody that if you relax your vigilance, somebody can easily walk off with what you’ve done – and improve it.
And then, in the algebra of Samsung‘s loss and Apple’s victory, there’s patent hell. Or absurdity.
System of litigation
Patents are, arguably, no longer a system of protection; they are a system of litigation. Great numbers of patents are now filed, in an over-burdened system, to protect not innovations but the right to litigate over innovations. Indeed, any patent of value will ultimately be litigated.
What’s more, as the system has become ever more over-taxed, as technology itself has become more complex, the ill-equipped and under-trained bureaucracy has increasingly taken to giving patents to wide-ranging abstractions.
Design concepts, behavior adjustments, and new approaches to problem solving are all patentable innovations. The system itself assumes that litigation is the check on the system. Which means, fundamentally, that the litigant with the most resources and greatest status wins.
But let us not argue the case that all this quite obviously impedes innovation and is part of a new unreal property land grab – not about technology at all, but about intellectual property: an effort to privatize much of what was once understood to be shared and public (indeed, not ownable, like the shape of the iPhone). But rather, for a moment, let’s look at this as a form of hubris that has inevitable consequences.
The Apple that has won against Samsung is the same Apple that lost against Microsoft. In other words, it is the kind of company that, through sheer willfulness, discipline, and perfectionism, can achieve brand hegemony of a singular type. But it is, too, the kind of company – the exact sort of company – that becomes, perhaps inevitably becomes, the bete noire of consumerists, regulators and, of course, most of all, its competitors.
This is the story between the lines of its great victory and its further share price surge. On the one hand, there is this seemingly golden company. On the other hand, there is anybody with any sense of history knowing this is going to end badly.
Companies that acquire the nation’s imprimatur often, if not invariably, over-reach. It is a characteristic of American capitalism: the price of getting really big and overbearing is that you incur an inverse reaction. In the early 1990s, an ambitious department of justice (a Republican administration DOJ at that) commenced its assault on Microsoft.
For better or worse, by the time the feds were finished, the company, with its rotten operating system, besieged and beleaguered, had become just one of many not-very-adept players in the space – an unimaginable outcome if you remember the once God-like power and scorched-earth wrath of Microsoft.
Apple, and its rotten phone, have a ways to go. But karma should not be underestimated as a factor in this game.