There continues to be a flurry of activity and motions and such around the Apple/Samsung patent fight, and we're avoiding most of the play-by-play until something "big" happens. But today there was an interesting ruling from the appeals court, concerning the original injunction that Judge Lucy Koh issued, blocking Samsung from selling the Galaxy Tab 10.1 device (which is already a bit obsolete anyway). She had issued that injunction earlier in the case, before the jury ruled, and that actually has presented something of a problem. Among the patents that the jury said Samsung did not infringe was the one that Koh relied on to issue her injunction. Given that, the appeals court has sent the injunction back to Koh to reconsider. Of course, all this really reinforces is the ridiculousness of the patent system today: a judge can assume that an entire product line can be blocked because it's infringing on a particular patent... only to have a jury (which in this case clearly mostly sided with Apple anyway) decide that the patent didn't apply. When a system comes up with such arbitrary results, it's a sign that the system itself is broken.

With the Apple/Samsung case finishing up, James Allworth, over at HBR, has an excellent post wondering why it matters if one company copies from another? A few years ago, we wrote about a book that pointed out that copying and then innovating on the copies is a perfectly reasonable and important business strategy. Allworth points to a new book (one I've been looking forward to for a while) by Chris Sprigman and Kal Raustiala (who we've quoted numerous times) called The Knockoff Economy: How Imitation Sparks Innovation.

He then takes the lessons of that book and applies it to the Apple/Samsung fight, noting that even if we assume they were imitating each other, that seems to have only encouraged further innovation, not less:

If you go back to the mid-1990s, there was their famous "look and feel" lawsuit against Microsoft. Apple's case there was eerily similar to the one they're running today: "we innovated in creating the graphical user interface; Microsoft copied us; if our competitors simply copy us, it's impossible for us to keep innovating." Apple ended up losing the case.

But it's what happened next that's really fascinating.

Apple didn't stop innovating at all. Instead: they came out with the iMac. Then OS X ("Redmond, start your photocopiers"). Then the iPod. Then the iPhone. And now, most recently, the iPad. Given the underlying reason that Apple has been bringing these cases to court was to enable them to continue to innovate, it's hard not to ask: if copying stops innovation, why didn't Apple stop innovating last time they were copied? Being copied didn't stop or slow their ability to innovate at all. If anything, it only seemed to accelerate it. Apple wasn't able to rest on its laurels; to return to profitability, and to take the mantle they hold today of one of the technology industry's largest companies, they had to innovate as fast as they could.

It's the same story we've been explaining for years. History and tons of studies have shown over and over and over again that competition drives innovation, because innovation is an ongoing process. Thus, when others can copy you, that actually accelerates innovation by giving the original incentives to stay ahead in the marketplace, and develop the next great thing. Research has also shown that it's not as easy as you think to "just copy" because you only see the superficial aspects to copy, rather than having the deeper understanding of what works and what doesn't that a market leader often gains.

In fact, when you understand that, you realize that patents can actually slow down innovation by letting a company rest on its laurels, and not have to continue to rapidly innovate. Other companies can't build on what they did first, and so they don't have the same incentives to continue to advance the market forward. And the Apple/Samsung fight in the market appears to support that.

If Apple ends up winning this case against Samsung — and either stops Samsung from releasing their phones and tablets to the market, or charges them a hefty license fee to do so — does anyone really believe that the market will suddenly become more innovative, or that devices will suddenly become more affordable? Similarly, if Samsung wins, do you really believe that Apple will suddenly slow its aggressive development of the iPhone and iPad? It's certainly not what happened last time they lost one of these cases.

Now, if you're with me so far, then I don't think it's a leap to suggest that having these companies duke it out in court over "who might have copied who" is counterproductive. All these lawsuits flying around suggest that everyone is already copying each other, anyway. A better solution? Let's have these companies solely focused on duking it out in the marketplace — where consumers, not courtrooms, make the decisions about innovation. In such a world, the best defense against copying isn't lawsuits, but rather, to innovate at such a rate that your competition can't copy you fast enough. That, to me, sounds like an ideal situation not just for consumers — but for the real innovators, too.

Exactly.

We've talked in the past about the importance of copying what other companies do as a business strategy (and just how common it is throughout history, despite the pejorative terms associated with it). But one of the key factors in making "copying" a successful strategy is in knowing how to improve upon what you copy. It's why Apple has been so successful over the years. Yes, it builds on the ideas of others, but does so in a way that improves them and makes them more usable.

Yet, we always hear of people fearing companies copying one another (sometimes mistakenly calling them "thieves" or decrying their unoriginality). And yet, it seems pointless to worry about such things. Even as people always seem to be afraid of big companies with big budgets copying others, history has shown time and time again that this almost never works. That's because merely copying what someone is doing not only takes you "where the puck has been" rather than "where the puck is going," but also has you focused solely on the outward, superficial aspects of what makes another product or service successful. What's missing is an awful lot of details in the background -- the knowledge of why certain things work and don't work, as well as how users and customers actually interact with the product. Such copying almost inevitably fails.

With that said, it seems like Samsung's plan to make its own Facebook, using the rather telling code name "Samsung Facebook" seems destined to fail for exactly that reason. The very fact that they're internally calling it "Samsung Facebook" shows that they're already aiming at a target in the past, rather than the future. It's the exact wrong approach and almost guarantees that whatever comes out of it will be seen as pointless by the time it launches. Learning from what others do is a useful strategy. Copying what others do can be a very important business strategy -- but it has to be done with the goal of exceeding where those others are heading, not in replicating what they've already done. That's a recipe for expensive failures.

We already had mentioned that Apple had succeeded in getting a rare pre-trial injunction against Samsung's tablets, but now it's also succeeded in blocking the Galaxy Nexus phone as well, though the judge's reasoning is a bit bizarre:

"Apple has made a clear showing that, in the absence of a preliminary injunction, it is likely to lose substantial market share in the smartphone market and to lose substantial downstream sales of future smartphone purchases and tag-along products," Judge Koh said in Friday's ruling.

First of all, this seems to be yet another admission by Apple that it just can't compete in the marketplace against Samsung. Such a ruling seems to scream out to potential buyers: hey, check out the devices that even Apple admits you'd want over its own. But, more importantly, "losing substantial market share" is what competition is all about. If someone comes out with a better product, then the other company should lose substantial market share. That doesn't deserve an injunction. That harms the market, who clearly -- even by Apple's own admission, apparently -- wants the other product more.

The fact that two phones will compete is no reason to ban a phone. Let them compete. Let the market decide.

Even more bizarre is why an injunction should be issued at all. Following the MercExchange decision, courts are only supposed to issue injunctions in exceptional cases. If it's an issue that can be dealt with by requiring a royalty, then there's no reason to issue an injunction.

Samsung, of course, is appealing this and asking that the injunction be put on hold until that appeal is heard. In the meantime, some are pointing out that, for all of Apple's insistence that Samsung copied the designs of its phone and tablet from Apple, you could easily make the argument that Apple got some inspiration from Samsung as well: And really, that's the point. Innovation and advancement involve all sorts of copying, but also improvements. It goes back and forth. Attacking one party for copying another misses the point, limits competition and harms consumers. It's too bad the US patent system and the courts now want to aid that process.