Apple Samsung

Now that Apple has thoroughly cleaned Samsung's clock and left the company scrambling for an appeal, there are a lot of unanswered questions. How will this affect the market? What does it mean to other smartphone vendors with iPhone-like products? But my first question is: where the hell was Google in all of this? Google may not have been listed as a defendant, but Samsung was in part a stalking horse for the entire Android platform. That horse is now heading to the glue factory.

Samsung may have made the devices, but many of the infringements are endemic to the Android operating system itself. For that matter, the fondle-slab design for phone and tablets, which the jury decided Apple owns, is a fundamental part of Google mobile platform. Samsung lost the game, but the jury's decision will have an even greater effect in the ongoing game between Apple and Google.

The verdict hurts Google in multiple ways. First, Samsung is taking it on the chin to the tune of $1.05 billion in damages, plus the possibility that many of products could be banned in the U.S. The Galaxy Tab 10.1 is already banned in the U.S. Although it is unlikely a judge would ban Galaxy S III phone sales, Samsung is going to have to pay Apple for the privilege—either in licensing fees up front or damages down the road. Samsung is the No. 1 distributor of Android phones in the U.S., and it has done more to grow the Android ecosystem than any other vendor. Losing Samsung—or even just raising their costs—is a huge blow to Google.

And you have to wonder what vendors like HTC are thinking right now. The HTC EVO looks a lot like the Galaxy S, which looks a like the iPhone 4 S. That is a design that Apple owns. HTC doesn't have the financial resources that Samsung does for exhaustive, endless, international legal battles. Nor does it have Samsung's technical patent portfolio, not that this provided much cover.

HTC, and every other Android handset maker, have two choices. License design patents from Apple, which will drive up their costs, or make phones that look radically different. And making phones that look radically different can be challenging when so many of the Android OS's features rely on the fondle-slab design.

And we shouldn't take for granted that Apple *wants* to license its design patents. It isn't like they need the money; they are already sitting on $117.2 billion in cash. Right now its priority is to grow its platform, not its revenues. And there are no FRAND (Fair, Reasonable, and Non-Discriminatory) requirements for design patents.

Google's Android OS may not have been on trial, but there is no question it lost here. Costs will go up for phone vendors, and if Apple decides to go after the next Nexus phone, it will have a solid precedent. The verdict also gives fresh hope to Windows Phone 8, which at the very least has an interface that is substantially different from the field of icons found on iOS and Android.

This trial was just one part of the elaborate chess game between Apple and Google. Android is still the most widely used mobile operating system in the world, and this particular case will be appealed. Even so, it looks to me like Google just lost its White Knight.

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