Apple v Samsung: San Jose or San Ferian

August 26, 2012

I tread carefully in offering any view on the recent ruling in the USA that Samsung had copied from Apple’s patent-protected designs. For starters, I should declare an interest: I am not in receipt of any payment from any technology company to spin, highlight or explain any aspect of the law relating to technology patents or the ongoing disputes affecting tablets, smartphones, Apple and Android (or as regards any other related field). This fact alone may disqualify me from commenting when, it would seem {from recent revelations:}, so many commentators are funded, sponsored or associated with one major company or another. But I would like to declare an interest nonetheless, an interest in receiving such a payment (preferably a large one) and then I can cease to feel unwanted and hold my head up with pride. (Bearing in mind that the SCL twitter feed (which is mainly from me) is rated by Klout as an influence on Christianity and Economics, neither of which are topics that it has ever knowingly addressed, it must surely be money well spent.)

I do not want to undervalue the importance of the verdict of the jury in the federal court in San Jose – a billion dollars is a lot of money to pay and the likely restrictions on sales of Samsung devices in the USA may cripple them in that market. It does really matter, appeal of no appeal. In fact, I would be surprised if the fact that the case actually concerns old versions of Samsung technology will matter much and even more surprised if the market restrictions are suspended while any appeal is allowed to proceed (so the appeal is of limited importance).

But a couple of conversations over the weekend had me checking just to make sure that we have not withdrawn from the EU and become the 51st US state over the weekend while I have been focusing on failing to get tickets to the Paralympics. Apparently, so I was told, Apple had caught Samsung out in copying and we could confidently expect the collapse of the Samsung brand in smartphones and tablets. Even allowing for the fact that this was a conversation in a pub and half of a radio discussion rather than a serious briefing from market experts, it reflected an attitude that seems to have been widely adopted following the San Jose verdict: the legal jurisdiction that really counted had found for Apple.

Now, the last I heard the position in England and Wales was governed by judges here not California. For example, the Hon Mr Justice Floyd gave judgment in {i}HTC Europe Co Ltd v Apple Inc {/i}[2012] EWHC 1789 (Pat) (see {here:}). That judgment represented a clear victory for HTC, which repelled most of Apple’s attempts to restrict a number of familiar smartphone features to its own products. Then there was the registered design judgment of 9 July, when His Honour Judge Birss ruled in {i}Samsung Electronics (UK) Ltd v Apple Inc{/i} [2012] EWHC 1882 (Pat) (see {here:}) that, while the Apple design in question (an iPad design) was deemed to be ‘a cool design’, the Samsung Galaxy tablets Tab 10.1, Tab 8.9 and Tab 7.7 (again, old technology in this fast-paced field) was held not to infringe the Apple Community Registered Design No. 000181607-0001. There are of course a number of other judgments in other EU jurisdictions that went rather better for Apple, and some that went just as badly. It is all terribly complicated.

My point is a simple one though: San Jose does not house IT law’s definitive court, sending rulings out to the world. It is true though that neither is the Hon Mr Justice Floyd the last word on the issue so far as the wider world is concerned (the world’s loss no doubt).

Moreover, a bit of elementary economics tells us that the loss of the ability to penetrate the US market is damaging for Samsung but, if you will forgive the phrase, it is not the end of the world. People in the EU, China, India, Russia, Brazil and Outer Mongolia may well still want Galaxy phones and tablets. They will not give a fig for San Jose; they will want cheap smartphones with lots of functionality, and Apple does not really do cheap. Today’s report of a 7% drop in Samsung share values is probably not a million miles off right if it is an assessment of the immediate loss, but the world market is huge and the USA market, rich as it is and important as a trend setter though it is, is no longer quite so crucial as once it was. We can perhaps forgive the ongoing overestimation of its importance in the USA, which sometimes has a problem in recognising the limits of its influence (and jurisdiction), but we should surely be doing rather better at getting things in perspective. Moreover, the impact of the verdict will be designed around, and quickly.

One final thought: I wonder if the much publicised ruling by a South Korean court that Apple and Samsung had infringed each other’s patents and the resulting product ban had any effect on the San Jose jury’s verdict. The ruling was described by respected commentator {Florian Mueller:} as a declaration of a trade war – if it really was an act of war, it ranks along with the Charge of the Light Brigade in terms of considered judgment and likely effect. I generally prefer the cock-up theory of history and suspect it was just ill-timed and would scarcely have been noticed if the spotlight had not already been shining on the dispute.

I should perhaps explain, for the benefit of foreign readers (and perhaps younger readers), that San Ferian is a slang term meaning ‘it doesn’t really matter’.