COMMENTARY Motorola Mobility (MMI) just upset Apple's (AAPL) patent suit cart by winning its German patent infringement suit against the maker of the iPhone, as patent blogger Florian Mueller reports. Unless Apple can convince a court otherwise, Motorola is now free to enforce an injunction that would keep iPhones out of the single largest market in the EU. And the patent in question is the European equivalent of one that Motorola is asserting against Apple in the U.S.
It's a considerable shake-up of Apple's winning streak and raises some big questions in its war against all things Android. Namely, Google (GOOG) is in the process of buying Motorola. This is one of the reasons why. In the post-Steve Jobs era, will Apple use this as an excuse to begin ratcheting down its intellectual property war? Or will the mobile industry continue to wallow in uncertainty?
Apple has been amazingly aggressive in patent actions against the rival mobile operating system. That's not so surprising given two reasons. One is Apple's history with Microsoft (MSFT), spending years trying to keep Windows from incorporating ideas that Microsoft had -- as a court ultimately decided -- legally licensed.
The other reason is the recently revealed level of animosity Jobs had toward Google for marketing Android. Jobs said that he would "spend his last dying breath" and "every penny of Apple's $40 billion in the bank ... going to destroy Android, because it's a stolen product. "
Rather than going after Google (GOOG) directly, Apple has targeted hardware vendors using Android. So has Microsoft, though it has been far more pragmatic, happy to take a significant royalty fee for each unit that such major Android vendors as Samsung and HTC ship.
Apple has taken a different path. Although it has licensed at least one patent asserted in at least one of its suits against Samsung to IBM and Nokia, neither of them make an Android device. Through its actions, like trying to block Samsung's Galaxy Tab tablet in Australia and the EU, Apple has shown that it is uninterested in reconciliation or patent licensing.
How long will it go on?
Although Apple has had some losses on the patent suit front -- for example, an Australian court denied an Apple appeal and lifted a ban on importing the Samsung Galaxy Tab -- the company has so far avoided being found liable for patent infringement itself.
This decision is a definite blow to Apple's strategy for two reasons. One is that it happened in Germany, which is too big and important a market to ignore. The other is that Google is acquiring Motorola, and this win suggests that the patents it will gain in the process might present some additional legal tools in this long running battle.
It's time for Apple management to do some serious thinking. Yes, Android is ahead in sales. But will trying to stomp out competition really do Apple, its shareholders, or the industry any good? It would be far smarter, now that Jobs is off to rearrange the hereafter to meet his design sensibilities, to change course and choose a more practical approach to licensing. Do as Microsoft has done and let product quality, innovation, and marketing smarts decide the winners, not lawyers and a courtroom.