Beneath Apple's Pyrrhic Patent Victory

NEW YORK ( TheStreet) -- The Apple ( AAPL) fanbois are all smiles today, following the company's "billion-dollar victory" in court against Samsung. The gloating got great coverage since the ruling came down late Friday.

But I disagree with Dan Gillmor, who thinks Apple got a green light to create an "unprecedented monopoly," as he wrote at The Guardian.

I think it's a pyrrhic victory.

Consider that $1.52 billion figure first. BGR.com reports that Samsung sold 90.43 million mobile phones in the second quarter alone. Microsoft ( MSFT) is getting Google ( GOOG) OEMs to pay it $15/phone just for its untested claims against Linux. This is not as much money as you think.

Second, consider what often happens in patent cases. Once a jury award is given, it's routinely appealed. By the time those appeals are exhausted, it has usually been whittled down considerably. I would be surprised if Apple gets anything like a $1 billion check at the end of the process but, as previously noted, $1 billion isn't that big a deal in a market selling 450 million units each quarter.

Third, all this can be invented around. Much was made over a German court ruling that Samsung Galaxy tablets, Version 10.1, could not be imported, as AppOlicious notes. But by the time of that decision, Samsung had already invented around the problems, the tablet at issue was obsolete and business was proceeding normally.

Fourth, this patent game is one all sides can play. Already, Google is busy patenting technologies and, through its Motorola subsidiary, suing Apple over them, as Business Week reports. Just as the only people who are happy over wars are the arms merchants, so the profiteers from legal war are lawyers.

As my old friend Wayne Rash recently wrote at TechWeek Europe, substituting litigation for innovation is a very risky business. Engineers and designers make money, lawyers cost money, and all the money lawyers claim to make from litigation usually goes back to try the next case.

I've written about patent questions for years. I oppose software patents as a matter of course. While the patents at issue here are design patents, the same caveats can apply.

As I wrote at my own blog early last year, the patent system is designed to encourage creation of a better mousetrap. You show your work, and you can protect that design.

But the patent system can't give you a patent for trapping mice. Someone else can always innovate around your design and get their own patent. That's what the patent system was designed to do, encourage innovation. When patents are used to stifle innovation, they're being used against the Constitutional intent of the patent law.

At The Wall Street Journal's annual AllThingsD conference this spring, one of the speakers called patent litigation "maddening, a waste, a time suck" and expressed hope that regulators fix the problem.

The speaker was Apple CEO Tim Cook, and in that he's absolutely right.

At the time of publication, the author had positions in AAPL, MSFT and GOOG.

This article is commentary by an independent contributor, separate from TheStreet's regular news coverage.