My feelings on Apple’s litigious nature are mixed. On the one hand, Apple has a right – perhaps even a duty to its shareholders – to defend its intellectual property. Legal protection is theoretically one of the most important barriers between Apple and the army of knock-offs willing to clone their innovations. On the other hand, the practical limits of what patent litigation has accomplished for Apple has been negligible. Tens of thousands of billable hours have yielded only minor victories for Apple, and none of them have been in this country. I attribute this to equal parts volume and systemic apathy. Apple has the most control over the volume, but the effectiveness of the system leaves a lot to be desired. Take the most recent example from Apple’s case against Samsung in the U.S. District Court for the Northern District of California, presided over by the Honorable Judge Lucy Koh.

Koh has been riding the parties to “streamline their claims” if they want to have their scheduled July 30 day in court. In other words, she wants them to reduce the volume to only those claims deemed the most important, some number that will make it possible for a jury to fairly consider them in the 25 hours each party will get to present their various arguments. Currently, Apple has 16 patents, 6 trademarks, 5 trade dress claims, and an antitrust case spanning 37 of Samsung’s products. Apparently this number was whittled down from some previous number, but it’s still a volume that Koh feels is too large to be reasonably presented. Koh threatened that if the parties could not come to terms, she may have to push the trial back to 2013. This begs a few of questions/observations in my mind:

• What is that number? Apple tried to get that out of Koh, but she won’t – and likely can’t – say. Apple’s counsel said ”We will do whatever we need to do to hold the trial date.”
• Who benefits from having that number reduced? You can argue that Apple benefits from expediency, but the clear winner is Samsung. Fewer pellets in your buckshot means a lower probability of scoring a hit. I’m sure Apple feels like every one of their claims is important or they wouldn’t have patented them.
• Who benefits from having the trial pushed back? This one is a no-brainer. Every day that Samsung gets to knock off Apple’s patent-”protected” innovations undeterred makes Samsung money. So Apple is put in a position of having to reduce its claims or face another year of Samsung selling products that derive some of their value from features that are supposedly protected by Apple’s intellectual property.

This dynamic puts a gun to Apple’s head and forces them to reduce the impact of their claim – claims that were substantiated by patents granted – because the judge doesn’t believe the number of claims can be fairly presented. That number is being left up to the adversaries in this case to decide jointly and the judge will “know it when she sees it”.

Imagine if this happened in criminal proceedings. “The defendant is accused of 12 counts of murder, but that’s a onerous number of charges for a jury to consider. Mr. DA, get with the accused’s defense counsel and see if you can pare those counts back to something more reasonable – whatever that is. And be quick about it or I’ll have to postpone the trial. Until then, the accused has posted bail, so he’s free to go until you settle on some nebulous “more reasonable” number of counts. Victims’ families? You’re going to have to wait for closure. Public at large? Your safety is secondary to the jury’s ability to process the counts that the defendant is accused of.”

Now this analogy is skewed toward hyperbole obviously, but I’m due for a little. For one, I’m ignoring Samsung’s counterclaims, but these would not have been made if Apple didn’t go after them first. My point is that a system that forces the claimant to reduce the impact of their claim – by jointly working with the opposing party in the claim – creates a dynamic where the plaintiff loses much more than they gain. It undermines the very notion of intellectual property protection.

A couple of days ago I poked fun at smartphone industry analysts, suggesting that perhaps the wiring between their heads and asses needed some troubleshooting. Apparently, I’m not the only one who thinks this. Jay Yarow writes for the wildly inconsistent (see yesterday’s Quick Hits) Business Insider that NPD’s 61% Android first quarter market share doesn’t add up. The iPhone made up 51, 78 and 60% of sales from the top 3 carriers, Verizon, AT&T and Sprint, respectively. So how is it possible for Android to account for 61% of the market?

Surveys.

NPD doesn’t dig into the market like some other firms do. Because Samsung doesn’t report its sales anymore, it’s hard to blame them. Surveys are fine for measuring preferences, but they suck for something as exacting as market share data should be. Yarow gets the skinny from NPD:

Ross Rubin, executive director for Connected Intelligence at NPD, told us NPD’s data is based on surveying 12,811 consumers about what smartphones they bought in the first quarter. We asked why he didn’t cross it with actual reported results. He said that’s not part of their methodology. He also suggested that the discrepancy could be coming from the rise of pre-paid phones ed: LULZ!.

NPD surveyed 12,811 people in a market that conservatively sold over 10 million smartphones. That’s one-tenth of one percent of the market. Extrapolating share from this data is beyond ridiculous, which is why you get this kind of embarrassing misreporting that NPD passes off as fact. Facts that were debunked by adding 3 numbers together. Maybe Ross and Andy are brothers? They seem to share the same love of evasive mathematics.