Here’s another way to look at these mobile lawsuits. Most are locked up with big claims on one side and big claims on the other. The first time the ITC bans a mobile company’s products will be the last action of the ITC. It will be too disruptive of too many people and companies to not warrant immediate congressional action to get rid of the antiquated agency, especially after tomorrow. So the ITC isn’t doing anything.

Even if these lawsuits resulted in record judgements, or 5x record judgements, winning market share and losing the patent lawsuit is a net win on the balance sheet. And it would also be a huge PR win. Say Apple wins all of these patent lawsuits but its smartphone market share fritters to under 20% of new sales. How would they not be tainted as a company that can’t win in the marketplace and has to take things to court? Where they may win on paper, but still lose on the balance sheet…

But if they win in court, how do they lose on the balance sheet? If they win, the losers will be forced to either stop using multi-touch or they’ll have to license.

The former seems unimaginable and the latter is revenue. I’m sure we can continue to flog the BMW analogy here. Isn’t their some technology owned by BMW that is used on Chevys and Toyotas?

And when was the last time you considered a company’s litigiousness when purchasing a product? Well ok, maybe YOU would, but give me an example of a company who had a good product that sued everyone, pissed off everyone in the industry and had consumers feel the brand was “tainted” by being litigious. Fold in that they were not only filing lawsuits but winning. Isn’t that the American Way?

But if they win in court, how do they lose on the balance sheet? If they win, the losers will be forced to either stop using multi-touch or they’ll have to license.

The biggest patent verdict to date is actually against Apple in the Mirror Worlds case for a potential $600M. Let’s say Apple wins a $2B verdict against Moto. It’s pocket change that is more than made up for by market share gains. And it probably takes several years on appeal before it’s even collected.

My prediction is as follows… Apple/Nokia comes to a head first. Nokia wins, but the amount they win effectively cuts down the royalty they can collect from Apple to below the nondiscriminatory pricing they charge others. In the mobile space alone, the courts are going to have to give patent owners strong incentives to settle and license, and not bring these to trial. Trials with meaningless verdicts (compared to market value) will quickly dilute the value of patents. Trials with ridiculously high dollar amount verdicts will attract serious attention from reformers, and yet, will still be dwarfed by market value.

Does anyone really think there will be a $10B verdict in any of these cases? And then, if you do think that, that it will survive appeal and won’t necessarily spark robust patent reform?

but wait, you didn’t say how Apple would lose because of this? Oh that’s right, you think they’ll lose market share and a win in the courts won’t matter a hill of beans anyway.

I agree, win, lose or draw, it won’t make a difference in the market.

So Apple should NOT have countered?

What would you have Apple do? Since you changed the topic to winning in the marketplace, what should they do to win in the market place? Open their device to all developers? Enable the technology so that anyone can install anything they want on their iPhone?

Make it so that when you connect it to a computer, it would mount as a flash drive and you could drag whatever you want onto it. If it’s an app, it will run, if it’s data it’ll just sit there. Protect the operating system (a little, we want the kernel tweakers to be able to experiment, since they are the small businesses of the future).

I believe the first music players operated on the “I’m a flash drive” model. I wonder why the iPod became so dominant without said “feature?”

But if they win in court

. . .

You’re thinking “logical”, ctopher. Doesn’t work with Envyboys. They have a whole skein of tangled logic stewing and spewing around in their cauldrons.