Three of Apple’s claims against Motorola recently got tossed out by the International Trade Commission. Many of Apple’s claims against HTC and Samsung failed as well, and the two claims that were upheld were both easy to work around. Samsung simply widened the frame on its Galaxy Tab, and HTC removed a tiny software feature that lets you tap a phone number in an email and pull up a menu of options. Meanwhile, Android keeps growing and has become the top smartphone platform. Samsung has leap-frogged Apple to become the biggest smart-phone maker in the world.
“They’re losing momentum. They’re at the point where the walls start to crumble a little bit,” says Kevin Riv
ette, a patent attorney and managing partner at 3LP Advisors, a consulting firm that specializes in intellectual property. Apple, he says, should be “looking long and hard at how to cut deals.”
Apple’s strong market position means it could still demand favorable terms from Android players—especially after a robust fourth quarter in which iPhone sales blossomed while Android sales wilted. The company could license its patents and collect royalties on every Android handset sold, as Microsoft has done with top Android phone makers. “The problem is, what happens when you start losing in court? It gets a lot harder to do licensing deals,” Rivette says.
Jobs, clearly, operated from a more emo-tional standpoint. He didn’t want to collect licensing fees from his rivals—he wanted to stamp them out altogether. Now Apple’s new CEO, Tim Cook, faces a difficult choice: should he pursue the visceral path of total war set out by his passionate (but now deceased) predecessor, or should he take a more pragmatic route and sue for peace? Cook’s decision could determine Apple’s fate in the mobile market. It will also demonstrate what kind of company Apple intends to become in the post-Jobs era.
Dan Lyons is technology editor at Newsweek and the creator of Fake Steve Jobs, the persona behind the notorious tech blog The Secret Diary of Steve Jobs. Before joining Newsweek, Lyons spent 10 years at Forbes.
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