5 ways Apple could lose out from its victory over Samsung

There's a cloud to every silver lining, even ones worth $1bn

After jousting in court with its great mobile technology rival, Apple enjoyed an almost-total victory over Samsung in the recent patent trial verdict: Samsung faces over $1bn in damages and potential bans on the sale of certain smartphone products in the US.

But it's not all good news for Apple - and we don't just mean the fact that it actually asked for $2.75bn. (Boo hoo!) No, we've thought of 5 unexpected negatives to come out of the trial for Apple.

1 The case has given Samsung masses of publicity

Samsung isn't a two-bit outfit by any means. It's huge in Asia, and it was already selling more smartphones globally than Apple before the lawsuit got started. But it was definitely less well known among the Western mainstream than Apple. (A colleague mused that the average consumer might struggle to tell you if Samsung was from North or South Korea.) This trial has eroded that lead.

The reason the iPad 2 was so much bigger that the first iPad was because it penetrated the non-tech-savvy market. People who'd never even owned a PC were going to the shops and asking for an iPad - not a tablet, but specifically an iPad, since that was the sum total of their knowledge of the tablet market. But now that the Apple-Samsung case has been covered on the evening news, they are aware that there's more than one company making 'iPhones' and 'iPads'.

Samsung has definitely done better on this front than Apple, which had mainstream recognition already.

2 and made people think that the two companies' products are basically the same

A significant part of Apple's 'trade dress' claims against Samsung revolved around something called dilution: this simply means that Samsung's patent-infringing products make Apple's seem less innovative and special - 'magical', you might say - simply by existing and being similar. But the legal process itself has done a pretty good job of exploding the myth that Apple is the only company capable of producing high-quality mobile electronica.

Indeed, a naive reading of the verdict would be that Apple and Samsung's products are actually the same - otherwise, how could Apple accuse Samsung of copying?

One Samsung fan has posted an account that seems to back this up. The fan, one Enrique Gutierrez, says he has sat in Starbucks and observed members of the public discussing the Apple/Samsung verdict in precisely these terms.

In his words:

"Not 10 minutes later, a husband and wife, same newspaper:

"Husband: ' Samsung's iPad is the same as Apple's iPad, and I paid how much for the Apple one? Honey, I told you they were a ripoff,' after looking up the Samsung tablet on his iPhone.

"Wife: 'Oh wow,' looking at the screen, 'that's a lot cheaper. Think we can return it?'"

The people he has watched then frequently approached him to ask about his various Samsung products, how much they cost and how well they work. In other words, to some observers the verdict seems to amount to 'Apple and Samsung products are the same - but the price tags aren't'. Gutierrez calls the verdict the "best billion dollar ad-campaign Samsung ever had".

3 It draws attention to the weaknesses of the patent system itself

When we asked readers whether they thought Samsung had copied Apple (at the start of the lawsuit), more than a quarter went for the response 'I don't care, I think the lawsuits are getting silly'. And you can bet that number would be even higher now. Patent fatigue is rife.

In 'Apple v. Samsung Highlights Insanity of Tech Patents', my colleague Tony Bradley wrote about the effect this case is having on popular perceptions of the patent system.

"To many, the patents being tossed about by Apple and Samsung like cannon fodder are simply ludicrous," Bradley wrote. "Apple has a patent for unlocking the smartphone by swiping? Thats ridiculous. Its obvious. How else would you navigate a touchscreen interface?"

The judiciary are also growing tired of the volume of patent cases clogging up the courts. Judge Lucy Koh has often lost her patience with Apple and Samsung's slow-moving legal teams throughout this case, but her feelings pale in comparison with patent terminator Judge Richard Posner, who has repeatedly stated his low opinion of such cases and dismissed the patent dispute between Apple and Motorola in June "with prejudice".

Finally, legislation has been introduced in the US to try and curb patent trolling. The Saving High-Tech Innovators from Egregious Legal Disputes (SHIELD) Act would force patent litigation plaintiffs to pay the legal costs of the defendant if they lose the case.

Apple has been one of the most vigorous users of the patent system in recent years, and would stand to lose significantly if the groundswell of popular indignation and judicial irritation leads to a clampdown on this legal recourse.

4 It makes Apple look like a litigious corporate giant, instead of a plucky bunch of pirate rebels

Ever since its founding Apple has liked to play up to the role of plucky underdog: the rebel outsider who won't play by anyone's rules. Steve Jobs was quoted as saying "It's more fun to be a pirate than to join the navy" in the early 80s, and his Mac team posed in front of a skull and crossbones for a Fortune story in 1984.

Similarly, Apple loves to have a stiff, authoritarian villain to go up against. The company called IBM 'Big Brother' in the 1980s and attacked it with a famous Orwellian advert directed by Ridley Scott. Later Microsoft fit the role of enemy perfectly, with Bill Gates the square-in-chief and the perceived differences between the companies' customers portrayed in the (rather annoying) 'I'm a Mac'/'I'm a PC' adverts.

None of which fits in terribly well with what we've seen of Apple in this court case. Apple today is a vast corporate behemoth with an army of grim-faced lawyers and a long list of grudges. Apple isn't fighting The Man any more. It is The Man. And for a company as brand-centred as Apple, not being cool any more is potentially costly.

5 The next big thing won't look like an iPad

It's quite possible that this one won't happen. But even as a member of the Apple-focused media, I hope it does.

For too long R&D thinking in the mobile tech space has basically amounted to 'Apple's iPad is making it rain money, so let's make an iPad of our own'. Or the equivalent for the iPhone. But the verdict here - or the verdicts that are likely to follow in the many patent cases sure to follow - could scare rival companies away from following Apple's templates too closely. Which will make life harder for a bit, but in the end could lead to something fantastic.

After all, a copycat product is never going to move the industry forward, or capture the public's imagination. But if Samsung goes away and comes up with something truly original, a form factor we've never seen before, something we never even imagined we needed - something as significant as the iPad, in other words - wouldn't that be great for everyone?

Everyone for Apple, of course. Because responding to genuine innovation is something it hasn't had to do very much lately.

See also:

Apple v Samsung: Five experts, five questions

Apple v Samsung: complete summary of patent trial

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David Price

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