The Great Smartphone War
By Kurt Eichenwald
For three years, Apple and Samsung have clashed on a scale almost unprecedented in business history, their legal war costing more than a billion dollars and spanning four continents. Beginning with the super-secret project that created the iPhone and the late Steve Jobs’s fury when Samsung—an Apple supplier!—brought out a shockingly similar device, Kurt Eichenwald explores the Korean company’s record of patent infringement, among other ruthless business tactics, and explains why Apple might win the battles but still lose the war.
iSPY Samsung chairman Lee Kun-hee, who was convicted of tax evasion in 2008 and pardoned soon after, and the late Apple C.E.O., Steve Jobs.
On August 4, 2010, amid the bustle of downtown Seoul, a small group of executives from Apple Inc. pushed through the revolving door into a blue-tinted, 44-story glass tower, ready to fire the first shot in what would become one of the bloodiest corporate wars in history. The showdown had been brewing since spring, when Samsung launched the Galaxy S, a new entry into the smartphone market. Apple had snagged one early overseas and gave it to the iPhone team at its Cupertino, California, headquarters. The designers studied it with growing disbelief. The Galaxy S, they thought, was pure piracy. The overall appearance of the phone, the screen, the icons, even the box looked the same as the iPhone’s. Patented features such as “rubber-banding,” in which a screen image bounces slightly when a user tries to scroll past the bottom, were identical. Same with “pinch to zoom,” which allows users to manipulate image size by pinching the thumb and forefinger together on the screen. And on and on.
Steve Jobs, Apple’s mercurial chief executive, was furious. His teams had toiled for years creating a breakthrough phone, and now, Jobs fumed, a competitor—an Apple supplier no less!—had stolen the design and many features. Jobs and Tim Cook, his chief operating officer, had spoken with Samsung president Jay Y. Lee in July to express their concern about the similarities of the two phones but received no satisfactory response.
After weeks of delicate dancing, of smiling requests and impatient urgings, Jobs decided to take the gloves off. Hence the meeting in Seoul. The Apple executives were escorted to a conference room high in the Samsung Electronics Building, where they were greeted by about half a dozen Korean engineers and lawyers. Dr. Seungho Ahn, a Samsung vice president, was in charge, according to court records and people who attended the meeting. After some pleasantries, Chip Lutton, then Apple’s associate general counsel for intellectual property, took the floor and put up a PowerPoint slide with the title “Samsung’s Use of Apple Patents in Smartphones.” Then he went into some of the similarities he considered especially outrageous, but the Samsung executives showed no reaction. So Lutton decided to be blunt.
“Galaxy copied the iPhone,” he said.
“What do you mean, copied?” Ahn replied.
“Exactly what I said,” Lutton insisted. “You copied the iPhone. The similarities are completely beyond the possibility of coincidence.”
Ahn would have none of it. “How dare you say that,” he snapped. “How dare you accuse us of that!” He paused, then said, “We’ve been building cell phones forever. We have our own patents, and Apple is probably violating some of those.”
The message was clear. If Apple executives pursued a claim against Samsung for stealing the iPhone, Samsung would come right back at them with a theft claim of its own. The battle lines were drawn. In the months and years that followed, Apple and Samsung would clash on a scale almost unprecedented in the business world, costing the two companies more than a billion dollars and engendering millions of pages of legal papers, multiple verdicts and rulings, and more hearings.
But that may have been Samsung’s intent all along. According to various court records and people who have worked with Samsung, ignoring competitors’ patents is not uncommon for the Korean company. And once it’s caught it launches into the same sort of tactics used in the Apple case: countersue, delay, lose, delay, appeal, and then, when defeat is approaching, settle. “They never met a patent they didn’t think they might like to use, no matter who it belongs to,” says Sam Baxter, a patent lawyer who once handled a case for Samsung. “I represented [the Swedish telecommunications company] Ericsson, and they couldn’t lie if their lives depended on it, and I represented Samsung and they couldn’t tell the truth if their lives depended on it.”
Samsung executives say that the pattern of suit-countersuit criticized by some outsiders misrepresents the reality of the company’s approach to patent issues. Because it is one of the largest patent holders in the world, the company often finds others in the technology industry have taken its intellectual property, but it chooses not to file lawsuits to challenge those actions. However, once Samsung itself is sued, the executives say, it will use countersuits as part of a defense strategy.
With the Apple litigation, the fight isn’t over—opening statements for the most recent patent lawsuit, which asserts that 22 more Samsung products ripped off Apple, were heard in the U.S. District Court in San Jose, California, on April 1. While both sides have grown weary of the litigation, court-ordered settlement talks have failed. The most recent attempt took place in February, but the two sides soon reported to the court that they could not resolve the dispute on their own.
No matter the financial outcome, Apple may well emerge from the legal wrangling as the loser. Two juries have found that Samsung did indeed plot to steal the iPhone’s appearance and technology, which is why a California jury, in 2012, awarded Apple more than a billion dollars in damages from Samsung (reduced to $890 million in late 2013 after the judge found that some of the calculations were faulty). But, as the litigation drags on, Samsung has grabbed an increasing share of the market (currently 31 percent versus Apple’s 15.6 percent), not only by pumping out “Apple-ish, only cheaper” technology but by creating its own innovative features and products.
“[Samsung] transitioned to a higher level of competition than they were at at that time, and I think part of that was a result of them having to fight this battle with Apple,” a former senior Apple executive says.
It was really just another page from the Samsung playbook, used many times before: When another company introduces a breakthrough technology, muscle in with less expensive versions of the same product. And the strategy had worked, helping the Samsung Group to grow from almost nothing into an international behemoth.
Patents Pending
Samsung was founded in 1938 by Lee Byung-chull, a college dropout and the son of a wealthy Korean landowning family. When Lee was 26, he used his inheritance to open a rice mill, but the business soon failed. So it was on to a new endeavor, a small fish-and-produce exporting concern that Lee named Samsung (Korean for “three stars”). Over the years that followed, Lee expanded into brewing and then, starting in 1953, added a sugar-refining company, a wool-textile subsidiary, and a couple of insurance businesses.
For years, there was nothing in this conglomerate even to hint that Samsung would enter the consumer-electronics business. Then, in 1969, it formed Samsung-Sanyo Electronics, which a year later began manufacturing black-and-white televisions—an outdated product chosen partly because the company didn’t have the technology to make color sets.
By the early 1990s, though, the company seemed like an also-ran, after the economic boom in Japan had pushed that nation’s businesses, such as Sony, to the forefront of the technology world; for those even aware of it, Samsung had the reputation for churning out inferior products and cheap knockoffs.
Still, some Samsung executives saw a path for boosting profits by boldly and illegally fixing prices with competitors in some of their top businesses. The first products known to have been the focus of one of Samsung’s major price-fixing conspiracies were cathode-ray tubes (C.R.T.’s), which were once the technological standard for televisions and computer monitors. According to investigators in the U.S. and Europe, the scheme was quite structured: competitors secretly got together in what they called “Glass Meetings” at hotels and resorts around the world—in South Korea, Taiwan, Singapore, Japan, and at least eight other countries. Some of the meetings involved the most senior executives, while others were for lower-level operational managers. The executives sometimes held what they called “Green Meetings,” characterized by rounds of golf, during which the co-conspirators agreed to raise prices and cut production to receive higher profits than would have been possible had they actually competed with one another. The scheme was eventually exposed, and over the course of 2011 and 2012, Samsung was fined $32 million in the U.S., $21.5 million in South Korea, and $197 million by the European Commission.
By the time they headed to court, Apple had questioned a series of engineers and designers whose names were on Samsung patents. Each confirmed that, yes, they had developed the technical item that was the subject of the patent. But when asked to explain the details of what had been patented, some of the employees couldn’t.
Accusations of deceit and trickery spilled out into the courtroom. Apple submitted a document to the court showing side-by-side versions of the iPhone and Galaxy S; Samsung later showed that the image of the Galaxy S had been resized to make the phones appear even more similar than they already were. After confidential license agreements with Nokia were turned over by Apple in discovery, Samsung used the information in its own negotiations with Nokia—a big no-no.
There have been moments that bordered on the absurd. One of the patents invoked by Apple is a single-sentence claim with diagrams for a rectangular device with rounded corners—not any particular device, just the rectangle itself, the shape used for the iPad. But then that seeming silliness was practically demonstrated to be important by Samsung’s own lawyers when federal judge Lucy Koh held up the iPad and Galaxy Tab 10.1 and asked a Samsung lawyer if she could identify which was which.
“Not at this distance, your honor,” said the lawyer, Kathleen Sullivan, who was standing about 10 feet away.
No one can claim a total victory in the global litigation wars. In South Korea, a court ruled that Apple had infringed two Samsung patents, while Samsung had violated one of Apple’s. In Tokyo, a court rejected an Apple patent claim and ordered it to pay Samsung’s court costs. In Germany, a court ordered a direct sales ban on the Galaxy Tab 10.1, ruling that it too closely resembled Apple’s iPad 2. In Britain, a court ruled in favor of Samsung, declaring that its tablets were “not as cool” as the iPad, and unlikely to confuse consumers. A California jury found that Samsung had violated Apple patents for the iPhone and iPad, awarding more than a billion dollars in damages—an amount that the judge later ruled had been miscalculated by the jury. In the debate over setting the damages, a Samsung lawyer said they were not disputing that the company had indeed taken “some elements of Apple’s property.”
One person close to Apple said that the endless fighting has been a drain on the company, both emotionally and financially.
Meanwhile, as has happened with other cases where Samsung violated a company’s patents, it has continued to develop new and better phones throughout the litigation to the point where even some people who have worked with Apple say the Korean company is now a strong competitor on the technology and not just a copycat anymore.
Despite his role in propelling the lawsuits forward, Jobs, who died in 2011, by now might have looked at the scorched earth left behind by the litigation and followed his own advice about recognizing when it is time to move on. “I have looked in the mirror every morning and asked myself: ‘If today were the last day of my life, would I want to do what I am about to do today?’ ” Jobs said in a now famous commencement speech he gave at Stanford University, in 2005. “And whenever the answer has been ‘no’ for too many days in a row, I know I need to change something.”
After more than 1,000 days of litigation, hopefully one morning soon executives at Samsung and Apple will look at their reflection and, at long last, hit their limit of “no”s.