This article was authored by Don Sambandaraksa, and was originally posted on telecomasia.net.
Remember the cold war, the arms race between the United States and the Soviet Union? Each side was amassing and developing more and more powerful nuclear weapons. Not that either side really expected that they would be used as one bomb was enough to destroy humanity. The point was never to use a weapon of mass destruction, only to have more, and more powerful ones, than the other side.
The same could have been said of the patent system.
Patents were, until recently, not unlike the nuclear warheads and ballistic missiles of the Cold War. Technology companies amassed them to show their technical and legal prowess, but they were not used themselves as weapon. When a threatening competitor came up, their lawyers would threaten litigation, then sit down and compare their piles of destructive force, and then most often come up with a cross-licensing agreement.
Nobody really got hurt and the system worked very well to prevent new entrants which lacked the patent portfolio protection.
A copyright protects an implementation of an idea; a patent protects the idea itself. On the one hand, many say that patents hinder development and make it impossible for new entrants to enter a market, hence the need for the Open Source movement which preaches freedom to engage in patents to protect that freedom, the irony of the situation not being lost to many observers. But on the other hand, with modern enterprise software systems being more and more complex but based on relatively simple transaction processing systems, it was clear that the bulk of work and investment went into the workflow design or the business design, not the copyrightable engine, and it was clear that the large enterprise players needed to protect their investments through the patent system.
But regardless, the Open Source movement still worked within the old rules of engagement; in a world where patents were not to be used to the bitter end, but to ward off challenges and lawsuits.
That was the status quo for many, many years until someone actually decided to go to thermonuclear war with his company’s patent portfolio.
Steve Jobs has been quoted in his authorised autobiography as saying that he was willing to go to Thermonuclear war and use all of Apple’s 40 billion US dollars in cash to destroy Android.
That explains why the Samsung Galaxy Tab incident went beyond a spat and why it was not, as many had expected, settled out of court. Cupertino launched its nuclear warhead with intent to destroy, not to intimidate.
It changed the world order. It took patent litigation to another level; to the ultimate level. It opened Pandora’s box.
The danger is that in such a new world order, Apple itself might not itself be safe. Just as the US would no doubt have been destroyed too in a nuclear war with the USSR, the counter claims that Apple now faces from multiple sides now that world war three is underway could cripple it too, claims from parties who know that it is now a case of kill or be killed.
In the meantime, Microsoft is busy licensing its patents to Android phone makers while innovation continues away from the old world. Android ROMs like MIUI copy the iPhone more blatantly than any official Android implementation but, centered around China, its developers simply do not care one way or the other about all the patent fuss that is happening in the old world.
Elsewhere, Samsung has reiterated its commitment to Bada - perhaps as a fallback plan if Android is wiped from the face of the earth - and even Nokia has said it will continue to develop Meltemi Linux for its feature phones after abandoning Symbian and Meego.
The world is changing. The harbinger of change was Steve Jobs. Let’s just hope that after the nuclear winter, mankind will emerge wiser and stronger.
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