Apple Patent Fight To Become All-Offense

by: Dana Blankenhorn

Most reporting on the Apple (NASDAQ:AAPL) vs. Android (NASDAQ:GOOG) patent war make it a two-way affair. Apple is suing Android OEMs, but they're suing back.

That is about to end.

The reason is that the patents Samsung (OTC:SSNLF) is asserting against Apple are essentially part of the 3G wireless broadband standard. As such, they were always subject to Fair, Reasonable And Non-Discriminatory (FRAND) licensing. In other words, Samsung can't both refuse to license those patents and sue for their violation.

Even now, industry publications like The Register may be missing the point, with headlines like "EU to Quiz Samsung and Apple on FRAND Deals." Again, there's an assumption, a false equivalence, about the talks implicit in the headline.

Motorola's success in winning an injunction against Apple is probably temporary. Once technology becomes part of an industry standard, whether unencumbered or under FRAND terms, its usefulness as a legal weapon quickly degrades.

The business impact of this should not be underestimated. This now becomes a one-way battle, Apple asserting patents against Android, Android companies defending themselves. The patents Apple is asserting were not made part of any industry standard, and Apple insists it won't license them as part of any settlement.

Courts, meanwhile, can be expected to delay as much as they can, hoping the parties can reach settlements, either financial or technical. Apple insists it won't settle, but it's unlikely to win a clear-cut - Android destroying - victory.

The reporting on all this is about to change, and in a way that Android companies not only won't like, but won't be able to spin.

Disclosure: I am long GOOG.