I remember reading in a 1st Circuit (I think) opinion that something like 60% of challenged patents are invalidated. This strategy strikes me as quite dangerous for Apple. They risk losing on average a bit over half of the patents at issue, and they could lose everything. Worse, even if they win, the patents at issue will be worked around and it will be a temporary setback. Apple really gets very little out of this fight.
So yeah, given that reality it would probably be smarter to try to focus on, well, actually trying to dominate in the marketplace rather than in the courtroom.
No doubt Apple and their lawyers know this too. What they get out of this is temporary removal of a competing product from sale. This almost certainly has bottom line benefits for Apple.
Courtrooms and patents are just another tool big corporations use to compete. Apple is particularly aggressive as is Microsoft but many companies do this. Motorola comes to mind and Nokia as well.
This needs to be fixed at the congressional level but good luck with that. Congress thinks the current patent system is pretty much perfect. Hopefully, with people like Posner finally speaking out, this changes
I don't know what percentage of patents survive by being read narrowly by a court.
The thing is that three things can happen to a patent when it is challenged:
1) The court can say "that's not a valid patent" kind of like the Supreme Court recently did in Mayo v. Prometheus (Prometheus patented how to interpret test results. The Supreme Court said you couldn't patent the results of the test, just the method of testing.)
2) The court can say "Ok, so the following is legitimate prior art, and additionally if we read this broadly, it can't be patentable, and so what's left when we read it narrowly and leave out the areas covered by the prior art is yours." In this case the patent is "strengthened" in the sense that everyone has a better idea of what will happen next time in court but it is also narrowed.
3) The court can let the patent stand as-is.
The problem is that while the latter two seem like they strengthen the legal position the next time around, where a patent was previously unknown or disputed, they also weaken the market impact because they provide larger reasons to work around the patent.
So I don't know. I don't see an upside for Apple here other than a very, very temporary edge in the marketplace.
"... actually trying to dominate in the marketplace rather than in the courtroom."
They're doing both, and it's a very slippery slope if they send the message that they are not willing to protect their patents.
I do agree, though, that it is a shame all of this effort is put into legal battles for what is usually minimal benefit. And that goes for the legal system in general.
So yeah, given that reality it would probably be smarter to try to focus on, well, actually trying to dominate in the marketplace rather than in the courtroom.