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Android phonemakers have essentially four possible routes to try to avoid a "doomsday" scenario

Thus far Apple, Inc. (AAPL) has seen its patents narrowed or invalidated in U.S. court.  At best it's cobbled together a handful of UI patents like gallery page flipping, kinetic scrolling, swipe-to-unlock, and a bounce back animation.  Together, these patents could make Android a bit less pleasant, but it would be far from “game over” as Google Inc. (GOOG) would be free to continue sales and continue to attack Apple with retaliatory litigation in hopes of reaching a licensing truce, while pursuing workarounds.

I. Monopoly is Almost in Apple's Grasp

But Apple has one strong hope of achieving its ultimate objective -- killing its top competitor and granting itself control over the U.S. smartphone market.  That patent is U.S. Patent No. 7,479,949, Apple's infamous "multi-touch patent".

The patent claims invention not of a particular narrow, precisely defined algorithm, but rather on an abstract description of all algorithms relating to the use of multi-touch displays.  Basically, the patent covers how when your fingers are moving in semi-linear directions, the idea of removing the wobble in order to get a usable gesture.

Virtually every Android device sold today uses multi-touch.  Without a method of allowing for accurate touch these devices would be rendered useless.  And that's precisely what Apple is hoping for.

Apple gavel
Apple scored a demoralizing victory over Android. [Image Source: ArsTechnica]

After scoring an early victory in January on the patent, Apple scored another win in a more in-depth judicial analysis of the claims in Apple's patent, and Google subsidiary/Android phonemaker Motorola Mobility's (the named defendant) complaints about the patent.

The presiding Chicago, Illinois Seventh Circuit Court of Appeals judge was Judge Richard Posner, a respected legal veteran and University of Chicago law instructor.  In a March 29 ruling, he defended Apple's interpretation of the claims language in the patent as mostly valid and chastised Motorola Mobility's lawyers for providing invalid and repetitive arguments.

Responding to Motorola Mobility's insistence that the patent should only be valid for the 27 degree contact angle (error tolerance) discussed in the example implementation, he chastised, "I reject Motorola's argument (this is the third time they've made it and the third time I reject it) that the structure must be limited to the 27-degree angle used as an example by the specification."

The decision clears the way for a potential ban on all Motorola Android smartphone sales on infringement grounds.

II. Ubiquitous Patent Won't Expire Until 2028

Apple's attorneys cheer the news, writing, "[H]aving identified the problems associated with imprecise finger gestures, solved them, and successfully incorporated them into a commercial product, Apple should be entitled to the fruits of its innovation via broad patent protection, and the public is benefited by the disclosure of Apple’s invention."

The patent will last through 2028, so by "public is benefited" Apple means that it hopes that the public will be "benefited" by a complete ban on Android for over a decade and a half.

Apple iPhone 4S
Apple's lawyers hope to "benefit" the public with an Android ban until 2028.
[Image Source: Carlos Rull]

Such an event would seem astounding, but is not impossible considering the following:
  1. Without multi-touch you might as well not sell a handset in the current market.
  2. Without gesture detection heuristic multi-touch would be impossible to implement effectively
  3. The validation of Apple's claims language clears the way for a preliminary injunction on all Motorola multi-touch handsets.  Bans on Samsung Electronics Comp., Ltd. (KS:005930) and HTC Corp. (TPE:2498) would likely soon follow.
  4. Apple has not indicated it is willing to license this patent.
This latest is outcome is largely a byproduct of a U.S. Patent and Trademark Office that allows overly ambiguous nebulous software descriptions to be patented and then a judicial system which, in turn, allows them to be enforced with destructive, anti-competitive consequences.

But this incident is the most eye-popping example yet of the dangers of the current American intellectual property system as it has a strong possibility of radically transforming a vast market whose devices U.S. consumers use every day.

III. How Did We Get Here?

The wily Cupertino giant, the world's most profitable electronics company began its bid in early 2005.  At the time Apple was enjoying a renaissance with its best-selling iPod, but it was curious if customers would buy a reimagined Apple Newton in a new ultra-slim form factor.  In order to differentiate its product, Apple bought FingerWorks, a research and development company specializing in multi-touch gestures.

At that point Apple began patenting multi-touch implementation details at a frantic pace.  The only remaining question was what kind of hardware to pair the algorithms with.

The answer came in 2006 when a handful of companies -- mostly Taiwanese display startups -- displayed capacitive multi-touch displays at the 2006 Consumer Electronics Show (CES) and other trade shows.  Apple moved quickly to enter agreements to snatch up all the supply on the new displays.

Apple iPhone
Apple's crafty moves positioned it to potentially score its biggest anti-competitive win yet.
[Image Source: David Paul Morris/Getty Images]

This allowed it to enjoy a virtually untouched monopoly on multi-touch devices a year later, when its iPhone launched.  While Apple's invention came largely second-hand via FingerWorks and the Taiwanese manufacturers, it appeared that Apple had "invented" multi-touch.

IV. Android Phonemakers Have Four Potential Routes to Avoid a Complete Ban 

Now the clever strategy that ensured its risky smartphone project instant commercial acclaim and success could pay a second dividend in the form of an anti-competitive gift from the U.S. judicial system.

If Apple does score a complete sales ban, it has complete control over whether it opts to allow licensing at premium rates, or simply to allow Android U.S. sales to die.  Either way Android phonemakers' only recourse would be to win a narrowing of the patent in similar Samsung/HTC cases, take the case to a higher federal appeals court in an effort to override Judge Posner's technical analysis, try to find enough prior art to convince the USPTO to invalidate the broad patent, or else win an equally damaging ruling against Apple, forcing licensing.

Game over
Is this game over for Android?  Don't count Google and its allies out yet, they have several viable options to fight a complete sales ban. [Image Source: The Dark Furie]

If Google, et al. cannot find a way to accomplish one of those four reversal routes, Android is essentially soon to be dead in the U.S., barring some unforeseen circumstance.  And if Android sales vanish in the U.S., the platform's global prospects are in jeopardy as well.

It sounds unbelievable, but Apple's ace could spell the virtual end of Android, currently the smartphone market's market share leader.  Of course, on the flip side of the Android coalition has a lot of fight left in it and will likely look to exhaust each of the above options to avoid a radical market changing event in the U.S.

Source: FOSS Patents

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RE: If I have to get a Windows Phone,
By Omega215D on 4/3/2012 12:56:40 AM , Rating: 1
This is ridiculous as Apple is also seeking to create, patent their new SIM and make it a standard.

Digital Desk:

HTC TouchFlo was in development before the iOS (not official release).

NeoNode has their unlock method.

RE: If I have to get a Windows Phone,
By Samus on 4/3/2012 2:53:58 AM , Rating: 3
As ridiculous this (and the SIM) crap is, what's truely amazing is Apple leaving Microsoft completely out of this.

Claiming they have no plans to license this technology, but at the same time, pick and choose your targets (attack Android, leave Microsoft alone) is just blatant anti-competitive behavior.

I'm not an Android fan, and honestly, think WebOS was far superior, but consumer choice needs to be protected. Currently, half of all consumers choose Android. How is this ruling good for anybody?

RE: If I have to get a Windows Phone,
By bug77 on 4/3/2012 3:57:00 AM , Rating: 2
It's not ridiculous, it's just that they need to at least pretend they're not a monopoly.

RE: If I have to get a Windows Phone,
By phantom505 on 4/3/2012 9:27:03 AM , Rating: 2
You're not allowed to selectively protect your patents. That can invalid them on face.

By sprockkets on 4/3/2012 2:54:35 PM , Rating: 2
Yes you can. That's why apple totally ignores MS and ignored palm.

You are thinking of trademark law.

RE: If I have to get a Windows Phone,
By Helbore on 4/3/2012 5:06:14 AM , Rating: 2
Apple aren't stupid. They know not to piss off Microsoft because they have tons of patents of their own and could actually hurt Apple.

RE: If I have to get a Windows Phone,
By LRonaldHubbs on 4/3/2012 10:33:20 AM , Rating: 2
I don't think that's really a concern here.
Microsoft and Apple have had a patent cross-licensing agreement since 1997.

RE: If I have to get a Windows Phone,
By sprockkets on 4/3/2012 3:07:14 PM , Rating: 2
If apple traditionally never licenses any patents (though it seems now they will), why would MS have gotten them without any effort?

None of those crucial iphone patents were around in 1997 either.

RE: If I have to get a Windows Phone,
By LRonaldHubbs on 4/3/2012 10:06:20 PM , Rating: 2
It appears that you don't understand what cross-licensing means. Microsoft didn't get patents without any effort. It invested $150M into Apple, which at the time was in poor financial shape, and also entered an agreement to share IP. Typically such an agreement lasts for some period of time and includes new IP which is created during that time, rather than being limited to the IP that exists at the beginning of the agreement. Apple's multi-touch IP may have come later, but that doesn't necessarily mean that Microsoft can't use it.

By sprockkets on 4/3/2012 10:21:11 PM , Rating: 2
In other words, Apple did this because they *had* to, not because they *wanted* to.

Now does Google have anything GUI/phonewise Apple needs? Not yet. Therefore, for now apple can sue with impunity without fear of reprisal. They couldn't do that against RIM or even the old palm.

Thanks again for proving my point.

RE: If I have to get a Windows Phone,
By Daemyion on 4/3/2012 9:27:15 AM , Rating: 2
I'm pretty sure there's a cross-licensing agreement already in place between Microsoft and Apple. Microsoft's patents in OS, touch inputs (MS began work on Surface in 2001), UI, and other fields pretty much compels Apple to broadly cross-license if they ever want to get a decent product out.

What I still don't get is why Google didn't do the necessary due diligence ahead of time. If they licensed the patents before announcing Android they would; A) pay less per patent and B) avoid this mess completely. They're pretty naive, tbh.

RE: If I have to get a Windows Phone,
By sviola on 4/3/2012 10:39:20 AM , Rating: 3
They are not naive, they just thought they could get away. They did the same with Java.

RE: If I have to get a Windows Phone,
By JasonMick on 4/3/2012 11:35:40 AM , Rating: 1
They are not naive, they just thought they could get away. They did the same with Java.

Err, with Java, they thought it was okay because the chief executive of Sun said it was, although they never obtain an explicit legalese licensing consent in writing. So naive would be the appropriate term.

Sun never sued Google. But Google miscalculated and after Oracle purchased Sun it was indeed sued.

By adiposity on 4/3/2012 1:55:25 PM , Rating: 2
Err, with Java, they thought it was okay because the chief executive of Sun said it was, although they never obtain an explicit legalese licensing consent in writing

We know, based on the infamous e-mail, that the licensing of Java was a concern at Google. We don't know whether anyone considered Schwartz’s comments a license to use Java.

His comments are damaging to their credibility, and possibly their case, though. And frankly, I think by making their own "non-JVM," they may well have circumvented the need to license anything.

It's possible that Schwartz wanted Google to license the mobile JVM at the same time as he was happy that Google was giving Java increased relevance. The two are not mutually exclusive. Sun may very well have suggested to Oracle that Google's failure to license the JVM was a selling point in the acquisition. We don't know.

By Tony Swash on 4/3/2012 2:08:17 PM , Rating: 2
Err, with Java, they thought it was okay because the chief executive of Sun said it was, although they never obtain an explicit legalese licensing consent in writing.

So they thought that basing the legal position of a multibillion dollar initiative on someone's blog post was OK?

So naive would be the appropriate term.

Possibly. Google's internal decision making was very poor and fragmented and they seemed to have stumbled into a vast undertaking with Android that has never made them any money. But I think that Google playing fast and loose with other people's intellectual property is a reflection of a very deeply embedded culture at Google that basically thinks that all IP (other than Google's own search algorithms obviously) is up for grabs and that IP protection is somehow old fashioned and can be routed around. Google is a company whose entire business is based on collecting other people's information and becoming an intermediary in everything everybody does with anything. 'Borrowing' code from Java was just part of the way the company does things. It genuinely sees nothing wrong with it. The business models of all other companies are just irritants to Google that just gets in the way of it's mission which is to manage the entire worlds data. All of it.

By DT_Reader on 4/3/2012 4:21:27 PM , Rating: 2
Apple doesn't sue Microsoft over this because Microsoft has cross-licensed the patent. Google can't cross-license the patent because they have no patent that Apple needs. Microsoft has dozens of patents the others need (hence the fact that they make more money off Android patent licenses than they do off Windows Phone licenses).

"When an individual makes a copy of a song for himself, I suppose we can say he stole a song." -- Sony BMG attorney Jennifer Pariser

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