An Ominous Message for Apple and Samsung

The patent battle between the two largest smartphone manufacturers has both sides squawking over who did what first. So far, there hasn't been sufficient evidence for any conclusion -- making it a tough call for the judge and jury. In the latest decision, the judge wants Apple and Samsung to make up, or else both parties will leave unhappy. Has this trial become a lose-lose scenario?

Jury duty
The double-sided courtroom battle taking place in the Bay area has been a difficult one for not just Apple (NAS: AAPL) and Samsung (NASDAQOTH: SSNLF.PK), but for the judge and jury as well. Both camps are seeking justice for alleged patent infringements by the other, and it's hard to identify a copycat with any degree of certainty.

The poor, poor jury has been subject to patent lawyers, engineers, and management teams defending and accusing in a language most of the jury members have never heard. This has not been a trial for anyone without a Ph.D. from MIT or a J.D. from Harvard. Even The Wall Street Journal's in-court blogger recently commented that in her 15 years of covering technology, she has never heard such complicated and deeply technical terms used in the courtroom.

The most interesting, and least convoluted, event in the trial so far has been the judge's suggestion to both Apple and Samsung to go back to the conference room and try to hammer something out. Not because Judge Lucy Koh wants everyone to get along, but because if the two parties cannot settle, the outcome is likely to hurt both teams.

No innocent parties
As I posed in a previous article, it looks like both parties may have some degree of guilt in this patent-plundering scheme. Would Apple have been able to create the iPhone without Samsung's existing patents? Probably. Did Samsung take design cues for its tablets from the iPad? Probably.

I know that sounds casual, and perhaps misinformed, but I probably come from a similar knowledge base as the jury does. Neither the jury nor I has a deeply technical background, so we can only go by the vague method of "what looks right." Both sides have made good, if extremely boring, arguments regarding competitors' use of their products. Is it possible to prove that Samsung engineers deliberately copied Apple, or is it just that there are certain commonalities between the products that are inherent to the ideas themselves -- rectangular design, "swipe" features, and so on?

Judge Koh is trying to spare everyone needless fees and save some form of sanity for the people who have to listen to explanations about how data uplink patents function. In the end, Apple will have to pay some money, and Samsung will have to pay some money, but I doubt there will be conclusive evidence that either company needs to take a product off the shelves because it's a direct duplicate. That just doesn't seem likely.

A better suggestion
From the comment section in my last article regarding the trial, I understand that Apple needs to protect its hard-earned inventions. And that the company has the resources to pursue new products while simultaneously protecting old ones. I get it, guys. But I still believe a settlement is in the best interest of both companies. These patent battles can go on forever in every courtroom around the world -- they already are -- but I would rather see Apple taking on Samsung or Google (NAS: GOOG) on the product front more than anything.

As Tim Beyers recently wrote, Google's Chrome browser, though with nearly a third of the browser market under its control, seems to be buggy with Apple products.

I know this isn't kindergarten, and not everyone has to be a winner and get a sticker at the end of the day. But I would rather the battle take place on the shelves, not the courtroom.

More apples
I, for some reason, doubt Apple and Samsung will settle. It just doesn't seem their style. While the end verdict is unknown, you can still look through the crystal ball as our analysts have forecasted many of the opportunities and hurdles that face Apple. Pick up your copy of this brand-new premium report.

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