It's blatantly incorrect to say of Apple (and even Microsoft) that "Instead of competing by building new features or devices, they are fighting through litigation."
Regardless of one's feelings about software patent lawsuits (I'm opposed), a better phrase than "instead of" might be "in addition to".
Agree totally. It doesn't really appeal to me personally, but Microsoft in particular is trying to do some new things from a UI and software perspective with Windows Phone. From what I have read about it, it actually seems like one of the few products where MS hasn't tried to systematically copy what is being done elsewhere.
Regardless of one's feelings about software patent lawsuits (I'm opposed), a better phrase than "instead of" might be "in addition to".