Three different accusations targeting Apple's dealings with patents came up in recent days:
Google chairman Eric Schmidt complained that an ITC ruling in Apple's favor tomorrow could limit choice. He had previously said that "the Apple thing [its litigation with HTC] is not correct".
TechCrunch's Jason Kincaid investigated Apple's relationship with non-practicing entity Digitude Innovations and concluded that "Apple Made A Deal With The Devil (No, Worse: A Patent Troll)".
Opera's Haavard Moen said Apple is "using patents to undermine open standards again".
All three kinds of criticism relate to Apple's use of patents to pursue its strategic objectives. I can't say that all three accusations are entirely baseless. They're all related to serious issues and raise important questions. There's room for debate. But each one implicitly proposes an alternative that is no less questionable than what Apple did:
Seeking ITC import bans is a legitimate strategy for enforcing intellectual property rights in the United States. By comparison, it actually takes much less time to win injunctions in certain other jurisdictions -- particularly but not only in Germany -- than to win an ITC import ban. Google's hardware partners Motorola and Samsung started litigation against Apple in such jurisdictions.
If Mr. Schmidt wanted to imply that Apple restricts competition, he will soon get a 400-page statement of objections against Google's allegedly anticompetitive conduct from the European Commission's directorate-general for competition enforcement.
I think Jason Kincaid did some great investigative work on the Digitude Innovations deal. That company is suing pretty much the entire industry -- except Apple -- over four patents, two of which it acquired (through a shell company) from Apple. I also agree with Jason that one can't absolve Apple of anything just because Digitude once threatened to sue it. As Jason accurately notes, Apple " could have undoubtedly found another way to fight Digitude, but instead decided to throw in its lot with the patent troll. Digitude is now using Apple's patents to sue nearly every major phone manufacturer".
However, would it really be better if Apple sued other companies directly over those patents? Non-practicing entities don't pursue strategic goals. They're only in it for the money. If Apple used those patents itself to, for example, shut down some HTC products, no one could accuse it of doing business with trolls but then Eric Schmidt would complain about how this limits choice.
Jason focused on Apple's deal with Digitude Innovations, but Google once invested in Intellectual Ventures, a non-practicing entity that is now, oddly enough, suing Motorola Mobility, a company Google is trying to acquire. Apple gave two patents to Digitude. Google gave tons of money and, even more importantly, lent its credibility to Intellectual Ventures. I'm just trying to point out that Apple isn't the only major IT company doing business with NPEs.
Finally, the W3C story. Five months ago I reported on a W3C call for prior art to fight an Apple patent and a pending application. The latest story is now about a W3C standard that is being developed for touch interfaces. It's not particularly hard to see why Apple would not readily contribute its intellectual property to royalty-free standards in this field.
Apple wants to retain certain exclusive rights. It's not the first company to do so and won't be the last. The W3C's patent policy works very well for basic HTML, but the organization is finding it increasingly difficult to develop standards related to new technologies. Both HTML and touch screens became very popular without a need for a royalty-free W3C standard in that area. Opera might be interested in free-riding on Apple's R&D, but Apple's refusal to let that happen is not the same as "undermining open standards".
Opera has come up with a number of interesting innovations for web browser over the years. For the time being Opera may not be interested in leveraging its related patents to the extent that Apple does, but it can't impose its own business model and intellectual property strategy on Apple.
The Opera blog post I addressed here was not an official company position -- just one person's opinion. But if his views were completely at odds with the positions of his employer, I doubt he'd have posted this on Opera's website.
There are complex policy questions underlying the three topics I addressed. I didn't go into full detail on each one of those. I just wanted to point out that it's easier to bash Apple for what it does with its patents than to propose hands-down superior, practical alternatives.
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