As many know, I am no fan of Apple products. They are not innovative, but instead work on design.
Apple products' central focus is the control of both software and hardware, making them a unique product in terms of market force.
Apple has begun a scorched earth approach to patents they claim do everything from open your phone to permit vocal search of the Internet. In the future, this fight could determine the health and welfare of the cellphone and search industries.
With such a huge marketplace at stake, where is the US government? For that matter, where are all governments with competition laws?
Apparently, sitting on their hands while the cellphone wars take place.
True, software patents are not easy to consider. In many situations, they face huge amounts of prior art which could preclude their enforcement and/or validity.
To date, the patent minefield is strewn with examples of software patents, many of which are specifically tied in some way to various hardware components because a purely software patent is not patentable in many countries.
The European Union is one example, where the European Patent Office allows multiple patent filings and searches in many European countries. While a truly consolidated patent office is yet to take effect, there is general agreement in Europe that a technical aspect of software patents is required before a patent can be obtained.
In many ways, this is easy to obtain. Thus, the following are examples of "technical" aspects that have resulted in successful software patent applications.
Apple claims to have several such patents that may raise questions as to fundamental search functions on the Internet. According to CNET, in discussing Apple's patent claims in Europe:
It is well and good for Apple fans to find comfort in this assertion. Perhaps Google should lose its rights to central issues involved in searching the Internet.
However, there are competition laws around the world that preclude the use of monopoly power even if through the exercise of lawful patent rights.
The current cellphone wars are expanding among Motorola, Apple and Samsung. But they are not yet focused on unlawful exercise of monopoly power.
They should be.
Apple will claim that they are merely the result of innovation, which cannot be curtailed by any lawful means. They will assert that Google has gone too far in its Ice Cream Sandwich software, which they claim steal some of Apple's innovations.
But this is where the rub comes in.
Recently, major cellphone carriers have admitted that they have charged not only Apple customers, but effectively all cellphone users including those who use the phones of other suppliers, a premium so they can use Apple software. Sprint was required to increase the charges on all users, not just the ones who use their phones, for the use of Internet enabled software programs and the length of time one could try out all devices from thirty to fourteen days in order to obtain the iPhone.
The ability to extract that additional money is not only a sign of monopoly power, it is also potentially a violation of consumer-related laws which preclude unfair competition.
Could those facing Apple's claims, including Samsung and Motorola, claim that these charges were in effect an unlawful charge on their products which extract unlawful royalties on patents they claim do not affect their products, or at the least an amount equal to the royalties Apple seeks to obtain for those products? Could a consumer who was required to pay more and try out cellphones for less time sue Apple?
Perhaps. Especially because Apple operates with a very large market share in an oligopoly.
This battle of the titans does not appear to have the eyes and ears of the US government yet.
But it should.
And the place to start is whether Apple has sufficient monopoly power and unlawful control sufficient to violate the US antitrust laws.




