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Who should win the Apple/Samsung case?

(MoneyWatch) COMMENTARY As the jury retires to deliberate over the Apple vs. Samsung case, much will be written about what the law demands. A verdict is expected this week and it will likely rest on legal minutiae and a complex examination of the copious evidence and numerous witnesses presented by both sides. But who should we - as business people and consumers, want to win?

It was Apple which brought this $2.5 billion suit against Samsung and it is asking that the court bar Samsung from selling products which infringe its patents. That sounds straightforward enough - until you realize that, as Kirby Ferguson pointed out in his TED talk, Apple itself has (at times) been quite bold in its own borrowings. Much of the original interface for the early Apple Macs came from Xerox which did not pursue the startup for the scroll bars, drop down menus and folders that Steve Jobs had so blatantly borrowed. As Ferguson notes, in 1996 Jobs was still happy to borrow: "We have always been shameless about stealing great ideas." By 2010, however, the tune was quite different: "I'm going to destroy Android because it's a stolen product. I'm willing to go thermonuclear war (sic) on this."

It is pretty remarkable that, among its other grievances, Apple claims that the rectangular shape and the rounded edges of its iPhone have been copied; I can't remember the last time I saw any phone that was circular, triangular or even square. Most laptops have rounded edges too; this makes them safer and more durable; is that also a design element Apple will now claim to own?

From a business perspective, any company wants to be able to protect the innovation it has paid for. We won't have high level research and development without some kind of assurance that we can own what we've invented, at least for awhile.

From a consumer perspective, we don't want companies merely to copy each other. The whole point of a competitive market is supposed to be that it provides variety and choice.The fact that most smartphones today look identical is disappointing and lazy. If Android is so great, why can't it do anything different?

Those two conclusions argue against a Samsung victory. Having Samsung in the market hasn't, in fact, generated competition or a diversity of product offerings; it's actually just making the market more uniform and more boring.

I'm rather sad to find myself on Apple's side, since I believe that threatening to go "thermonuclear war" on any consumer product is pretentious, hypocritical bombast. But while I agree with Kirby Ferguson that all creativity derives from other things we've seen and heard, that (as he puts it) everything is a remix, I also believe that you have to add something to that mix. When T.S. Eliot wrote the mashup that we now know as The Waste Land, he quoted a lot of sources but he brought to them a unique sensibility, tempo and imagination. We're all inspired by work outside of us but we have to work on it internally before we can claim to have made something new.

The people who truly understand this, of course, are scientists. They're acutely aware that every experiment, each finding and non-finding, derives from the work done by other scientists who came before. Just one small data point can change everything. But before you can call it yours, you have to do some work of your own. And most of them are outspoken about their debt to others. Not something you'll find, in this case, from either protagonist.

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