Apple vs. Android: A grueling patent war of attrition

December 23, 2011, 11:58 AM UTC

HTC was forced to drop one feature. Motorola may have to drop another. More to come.

The 1969 War of Attrition. Photo: Israeli Air Force

Many commentators took at face value HTC’s declaration of “an actual victory” after the U.S. International Trade Commission ruled that it had infringed Apple’s (AAPL) patent on software that allowed a user to dial a number embedded in an e-mail simply by clicking on it. That particular feature was only one of 10 patents Apple had tried to assert, HTC argued, and the Taiwanese manufacturer of Google (GOOG) Android phones had already found a way to remove it.

Now it looks like Motorola (MOT) may have to do something similar about Apple’s patented method of flipping through pages in a smartphone photo gallery and zooming in on a particular image. According to FOSS Patents‘ Florian Mueller, a court in Munich is likely to rule in February that Motorola’s Android phones infringe this patent as well. Another Android phone manufacturer — Samsung — was already forced to drop the feature by a Dutch court’s injunction in August.

Neither case constitutes a knockout blow for Apple, but Mueller argues that the company is making headway in a war of attrition in which Android manufacturers have to modify their smartphones one feature at a time to work around Apple’s original ideas — which, he says, is what Steve Jobs wanted all along.

“While one or two wins of this kind won’t be enough to change consumer preferences,” Mueller writes, “the aggregate effect of the enforcement of half a dozen or more patents of this kind could make an appreciable difference in user experience.”

Apple, he says, is fighting for long-term opportunities.

“As long as it doesn’t come under enormous pressure, it can afford to crack one nut at a time, country by country. In this you-win-some-you-lose-some game, a substantial drop-out rate is less important than steady progress.”