Samsung likely copied Apple, but is every smartphone ever an iPhone rip-off? - Chicago Sun-Times

BY ANDY IHNATKO August 23, 2012 4:52PM

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Updated: August 23, 2012 4:52PM

At this moment, jurors are deciding whether or not Samsung, while developing their own line of multi-touch smartphones, decided to just rip off Apple and copy ideas off of the iPhone. I suspect that it’s going to be a long deliberation, as these men and women sort through the previous weeks of testimony and exhibits, and then weigh the two possible answers to that question: it’s either “Yes, they did” or “Oh, [expletive] yes!”

Honestly. That Samsung has been copying Apple to one degree or another has been plain from their first Android phone. Two modern mobile devices from two different makes are naturally going to have the same suite of baked-in apps for contacts, calendars, and communications ... but would any of them naturally have the exact same icons?

Oh, Samsung.

But hey, my parents raised me well: I was taught to not make quick, unfair assumptions about people or their motivations. Besides, I sure wouldn’t want my present character to be judged based on the worst decisions that I made many years ago.

Somewhere, my Mom is reading that paragraph and she’s nodding her head and smiling. “Such a kind boy I’ve raised,” she would think.

At which point I’d show Mom the Samsung Galaxy S III, this summer’s hot new phone. I would double-tap the Home button. The display shifts to a black screen with a chromed microphone button at the bottom, which pulsates as I speak. Cartoon balloons document the conversation I’m having with this personal digital assistant. Samsung didn’t go so far as to call their “S-Voice” feature “SamSiri,” but that was their sole show of restraint.

“Oh,” Mom would say. “They definitely shouldn’t have done that.”

Samsung. Sweetie. You’re not making it easy for generous people like me to defend you. But defend you I will. I don’t want Apple to be handed a total win in their battle with Samsung. I don’t think Apple deserves the billions of dollars in punitive damages they’re asking, and I don’t think a judgment fully in Apple’s favor would be good for the development of future technologies and products. Every other tech company would be running scared.

I’m by no means qualified to discuss the legal points brought up during the court proceedings. All I’ve done is read the many documents that have been presented by both sides. They’re a treasure trove of background material about how products are developed and improved. Apple’s presentation was hypnotizing, particularly because it was an unprecedented breach of the iron curtain of secrecy that the company normally maintains around everything it does. The world got to see design and engineering samples that illustrated the full evolutionary process behind the development of the iPhone and the iPad. Senior executives gave depositions and testimony that described how Apple takes an idea from a whiteboard to a white pasteboard box.

The point Apple made (quite successfully) is that the iPhone metaphorically began with a block of clay that dozens of engineers kept whacking at and adjusting until they stopped producing awful samples that they hated, and finally hit upon the right form for the product and the right articulation of the idea.

Another telling point from Apple’s case: overall, their testimony demonstrates that the company’s iDevice patent portfolio was developed just as carefully and shrewdly as the hardware or the operating system. Patents were secured at every conceivable step of the process. Which is par for the course during any product development cycle at any company. But Apple’s approach was unusually granular, and has the appearance of a strategic action rather than a defensive one. Traditionally, if you’ve designed, say, an innovative hinge for attaching a laptop screen to its body, you can patent the distinctive way the hinge functions and you can patent the distinctive way it makes the laptop look.

But you can’t enforceably patent the broad concept of attaching a screen to a laptop via some kind of hinge. That’s just part of what makes a laptop a laptop. Apple, it seems, tried to secure every patent it could on what makes a smartphone a smartphone, or a tablet a tablet.

Overall, this helps to clarify Apple’s attitude in this and other courtrooms recently. Patents are like a crop. You clear the field, grade the soil, till and prepare it for planting, plant seeds, and urge crops to grow over a course of years. That’s all of the legal work that Apple did while developing the iPhone and iPad. Today, the intellectual property crop is as high as a litigator’s eye. It’s time to reap, in the form of using this portfolio to help Apple exercise an immense amount of control over the mobile marketplace, in ways that go beyond simply designing great products that everybody wants to buy.

One Apple document in particular helped me to define my feelings about this case. Apple approached Samsung in 2010 with an opportunity to head off future unpleasantness by cross-licensing smartphone and tablet technologies. Cool; Samsung is an important Apple parts supplier, and besides, calm negotiations are usually cheaper and more productive than open warfare. In fact, when Steve Jobs returned to Apple in 1997, one of the first things the company did was resolve a number of longstanding lawsuits ... most notably, a highly-corrosive fight with Microsoft.

But then you read the actual presentation file that Apple sent Samsung. It outlined their position on the matter, and their proposed license terms. It’s slightly incredible. Apple’s position â€" at least as represented by this presentation â€" appears to be that the iPhone completely redefined the basic concept of the smartphone as a (somewhat loosely-defined, to my eye) “advanced mobile device.” It’s a definition that goes beyond trade dress and user interface: it’s conceptual. On the basis of this vague definition, Apple apparently feels as though it’s owed money from any phone that can do anything more than make and receive phone calls and text messages.

The presentation includes a complex set of pyramids and tables indicating how large a licensing fee Samsung would be required to pay Apple for each of their phones. It was a basic rate of $30 per phone and $40 per tablet. Discounts were available, based on what kinds of technologies an individual Samsung device uses, its degree of similarity to the iPhone, the iPad, and iOS, and whether it already licenses Apple technology via a third party.

Would it even have been possible for Samsung to sell any kind of phone without paying a licensing fee to Apple? It sure doesn’t look that way. The presentation includes several concrete examples. As you’d expect, a Samsung Galaxy phone running Android (conceptually the 2010 device most similar to the iPhone) would only receive a 20% discount, based solely on a credit for the technologies that Samsung would be licensing to Apple as part of the deal.

OK, now let’s move on to the Blackjack II. This one had the familiar pre-iPhone Blackberry styling: a phone with a thumb keyboard, underneath an old-fashioned landscape color display, running Windows Mobile. It didn’t have a touchscreen: you navigated the UI via a jogwheel. It was released in late 2007, less than a year after the iPhone. But it was just a linear upgrade of the first Blackjack, which debuted in 2006.

Apple’s presentation breaks down the license fee thusly: the Blackjack earned a 20% discount because of the Samsung/Apple cross-licensing; a 40% discount because it used a Microsoft OS (Apple and Microsoft had an existing cross-license in place); and a 20% discount because it had a QWERTY keyboard.

So according to Apple, the Blackjack, a device which could hardly be more different from the iPhone, and which was initially developed before anybody outside of Apple had the slightest idea of what an iPhone would look like or behave like, is a rip-off of the iPhone to the tune of $6 per unit.

Let’s put it another way: Apple insists that the Blackjack is actually 80% ripped off from the iPhone, but hey, Apple’s willing to forgive $24 of the $30 Samsung owes them.

And when you’ve finished wrapping your head around that one, you can check out the table on Page 18, in which Apple says that Samsung would owe them $51,000,000 for licensing fees on Symbian-based and “Other” phones. On what planet is a 2006-era Nokia, or a 2005 “free with contract” 3G candybar phone, in any way a rip-off of the iPhone?

I think Apple’s attorney’s shot themselves in the foot by presenting this document. It certainly cost them the “hearts and minds” part of the war; it’s hard for me to see them as an offended and injured party. Instead, the presentation makes Apple look like the Marcellus Wallace of the smartphone and tablet industry: it presents their opinion that other companies’ right to create those kinds of devices exists solely at the pleasure and discretion of Apple, and the company has the right to tell you to get the hell out of town.

It also clicks in to a couple of nagging concerns I’ve had about this court case from the outset. Many in Apple’s most hardcore fandom have been cheering about the company finally seeking justice; that Android, and competing handsets, simply copy the iPhone.

It all sounds distressingly familiar. For years, Apple-haters would dismiss the company’s passionate and creative success by insisting that the Mac was just a bald-faced rip-off of the work that Xerox did at PARC. That claim was such utter rubbish. The ideas that the Mac team took away from Xerox were properly licensed to begin with. But that’s not the real truth. The Mac project was already well underway before Apple’s historic visit, and the goals of the Mac had already been firmly set before they stepped foot on the property: the Mac was meant to be a leap forward in simplicity, by creating a computer with a bitmapped, black-on-white display that effortlessly mixed text and graphics into a next-generation user interface. Many of PARC’s basic ideas were already fairly common currency between engineers, too. One of the reasons why Apple sought out the tour in the first place was because Xerox’s work was a concrete, touchable example of the project Apple was already pursuing. Apple’s engineers knew about it. And, in only the most positive sense of the word, they were influenced by the work of their colleagues.

The Mac was a rip-off of the Xerox STAR? Ridiculous. There were surface similarities, and the motives of the two computers have an obvious area of intersection, but nobody who’s seen both machines in operation for more than 20 seconds would dismiss the Mac in such an offhanded and boneheaded fashion.

If the Samsung Galaxy S3 were a rip-off of the iPhone, there’d be no need for it to exist, and I wouldn’t have recommended it in my review. Its motives intersect with the iPhone’s, but Google and Samsung have articulated those shared motives in a way that’s highly individualized if not precisely unique. I mean, yes: Android 4.1 and the Galaxy S III come from the same planet as iOS 5.0 and the iPhone 4S, clearly. But they’re citizens of two distinct nations separated by water.

I’m also troubled by the lack of credit that’s given to the iPhone’s predecessors. The iPhone was a landmark device. That said, it was just the next step in the ongoing development of the mobile phone. Over a slow, grinding process, the 12-button flip phone has evolved into increasingly sophisticated smartphones.

No way, no how, did Apple “invent” the so-called “advanced mobile device” that they describe in their settlement presentation. The Blackberry knocked the world on its butt, It changed the fundamental role of the cellphone from an intermittent device to a wholly immersive one. It wasn’t called the “crackberry” for nothing; everyone in your social circle (as well everyone in your office, regrettably) was by your side at every waking moment, everywhere in the world. Palm had a monster hit with the Treo. Its persistent mobile data connection, its muscular mobile web browser, and its large library of third-party apps ushered in another fundamental change: we stopped thinking of a mobile phone as primarily a communications device, and began thinking of it as a pocket computer that does pretty much anything we ask of it.

The list goes on and on. Nobody seems to remember all of those Windows Mobile phones that featured a graphical user interface operated by the best touch input systems available at the time: a fingernail or a tiny stylus. Many of these phones presented themselves as a bare, big, portrait-oriented screen ... the better for watching videos, reading documents, and reading emails and webpages. And why has everybody forgotten about the Sidekick? It’s hard to look at this early-2000’s device and not see the conceptual seeds of every phone we use today. An eminently social device with a friendly, graphical interface.

In 2006, LG even made a phone that was very similar to the iPhone. The Prada didn’t work very much like an iPhone, but its existence in the timeline tends to dismiss the argument that a touchscreen based phone without distinctive mechanical interface elements is a unique innovation that wouldn’t have occurred to anybody who hadn’t seen an iPhone.

Did Apple rip off all of these devices?

In one word? No.

In one paragraph? Sure. No creative work exists in a vacuum. You’re always influenced by your exposure to things you’ve already seen that worked well. Furthermore, when you’re developing a consumer product, successful existing products in that space teach invaluable lessons about what consumers like and want. Apple certainly didn’t copy any of the Treo’s surface features, or any other phone that existed before the iPhone. But they must have noted the features and elements that real people were responding so enthusiastically to. Hell, they knew about the features and functions that they themselves responded well to, with the phones that they carried in their pockets every day. Those other devices didn’t sell in the millions because they were irrelevant to modern mobile computing. Every sale was another data point for any competent engineer to observe.

Try telling that to Apple’s most hardcore fans. There’s a creepy 1% who paint a more colorful picture about the development of the iPhone:

Steve Jobs ritually shaved the head of an Apple engineer. Jony Ive applied the sign of the Infinite Loop to his head, with powdered aluminum. Tim Cook handed him a single, perfect strawberry as his lone sustenance during his arduous journey. The engineer then bowed, took off his shoes, and then began his Warrior’s Pilgrimage by leaving the corporate campus and walking west. He proceeded into the mountains nearby, communicating with sparrows and locusts who directed him to a stream fed by holy waters. Here he stripped down and purified his body. Then he moved on to an empty meadow. He ate the strawberry and after appreciating the subtle perfection of its beauty and this fixed moment in time, he began performing a series of slow, elaborate, and balletic kung-fu moves.

The engineer kept this up, so engrossed in his movements that he barely noticed the seasons changing around him. Until, finally and without warning, his right hand started throwing off green, yellow, orange, red, and purple sparks. When the sparks turned blue, he HURLED his fist into the ground, causing every tree and bush to quiver from miles around, as a massive burst of energy fused the earth around him into black glass.

The engineer pulled his hand from the resulting hole and found that his still-glowing fingers held the first-generation iPhone ... a device the likes of which no mortal eye had never been seen before.

A fox, a wolf, and a panther â€" each with glowing silver eyes â€" then formed a protective circle around the engineer as he began the journey back to Apple. Wind sprites, in the form of whirling balls of rainbows, whooshed ahead to the east, to inform senior Apple management that the arrival of The Device Which Was Foretold was near.

It’s a cool story. But I would humbly disagree with this view. The iPhone wasn’t nearly as influenced by previous phones as the Samsung Galaxy was influenced by the iPhone. But the iPhone was still the beneficiary of all of the good and bad decisions made by every phone made before 2007.

In broad terms, the role of the every preceding smartphone was to inform and inspire the generation of handsets that came after it ... including the iPhone. The role of the iPhone, in turn, was to inform and inspire the generation of handsets that came after it.

And is this a terrible thing for Apple? Naw. It’s an old tradition that feeds all kinds of design and Apple benefits from this tradition as much as any other company. They get to see how the public responds to phones with much larger screens, and NFC radios, and LTE broadband, and numerous other hardware and software tweaks without having to build and sell those features themselves. A troupe can write and rewrite and rehearse and restage a play a hundred times, but all of those ideas and weeks of work don’t mean anything until you put it in front of a real, paying audience.

Each consumer purchase teaches the marketplace about the kinds of decisions that fly and the kinds that die. Lame companies copy. Smart companies learn. Apple revamped the iOS user interface for system and app notifications last year. Is it a coincidence that this new scheme looks exactly like Android’s?

There’s a degree to which this kind of thing is definitely fair play. And there’s a degree to which this is outright theft. The iPhone was introduced in 2007 and it became an instant it. How did Samsung choose to react to that? Over the next couple of weeks, jurors will try to decide exactly how Samsung chose to react to that.

Did Samsung think, “Ooo, there’s money in those. We ought to rush out a copy as soon as we can. And if we can confuse potential iPhone customers into buying one of our phones instead, all the better”?

Or did they think, “If Apple is selling these things faster than they can make them, then clearly there’s something about the modern consumer that we didn’t already know. What can we learn from the iPhone?”

Another so-called “smoking gun” document surfaced in court. It’s an old Samsung internal report that compares the first iPhone with their own first Android smartphone, screen for screen, app for app, feature for feature, with detailed engineering notes on the differences.

One interpretation of these notes is that they outline how a Samsung Galaxy can be made to copy the iPhone more closely. Another interpretation is that Samsung’s engineers were trying to work out answers to tough questions: “Why doesn’t out phone work nearly as well?” “Where did we screw up?” “How can we make a better product?”

I’ve read the entire document and I don’t presume to know what the truth is. Again I curse my inability to peer into the human soul. Still, it’s hard for me to dismiss the latter. Samsung’s analysis rarely wastes time on surface appearances. Instead, it tries to understand basic concepts of how a human being interacts with an app held in the palm of a hand.

But who knows.

I do hope Apple doesn’t win this case. I’m not siding with Samsung. I’m siding with consumers. If Apple is handed a total win, then the precedent -- plus the company’s limitless war chest -- effectively grants Apple complete gatekeeper control over the entire future of hardware and software development. That would be a terrible thing.

The only positive outcome I could see from such a total win would be that it would encourage all other handset and tablet makers to unite against a new common threat. Maybe they’d see the value in creating a completely new, free mobile operating system and hardware specification that’s squeaky-clean, and safer from attack from Apple.

The Win for consumers: by definition, this litigation-proof OS and phone would be an entirely new concept developed from the ground up as a fresh, modern, Second Decade Of The 21st Century type of mobile device. And not a phone with the baggage of ideas that were considered extremely hot stuff during the Bush Administration.

That’s the worry for Apple. Being undisputed industry leaders is a new role for them. iOS, in its current form, is a machine that just keeps printing money. Will they now try to keep that machine running? Or, armed with five years of experience in observing how people interact with the iPhone and three years of watching people use iPads, are they willing to smash that machine to bits, erase the whiteboard, and start again?

Apple’s been running their lawsuit factories on triple shifts recently. That comes with the risk of redefining Apple in the public’s eye as a company whose business is running the business, as opposed to a company whose business is actually creating things.

But companies almost never lose their collective cultural personality. Apple is a whiteboard-eraser by nature. And they’re smart enough to know that if the iPhone was able to kill the Blackberry and the Treo practically before RIM or Palm had any idea what was going on, then it’s quite possible for a competitor with a fresher and more relevant approach to kill the iPhone just as easily.

It’s only possible if Apple allows itself to become a company of maintainers instead of innovators.