When I heard the verdict on the Apple v. Samsung case, I was angry. Angry with Samsung for copying, angry with Apple for suing, angry with jurors for naivety, angry with the legal system for letting itself be a pawn. Over the weekend, I’ve mellowed a little but I’m still concerned about the impact it will have on consumers.
Apple is not a great first inventor. It didn’t invent the PC, the GUI, the digital music player, the smartphone or the tablet: I will leave it as an exercise for the reader to educate themselves as to who did. Apple is great at design, marketing, timing and extracting value from suppliers, partners and customers. Absolutely no doubts there and they have the bank balance to prove it.
The word on the street was that Apple was looking for a $30 licensing fee to cover the use of the patents. As a consumer, I think that’s a rip off when compared to the overall price of the device. None of those patents are intrinsic to the device and I would happily have a phone or tablet that doesn’t have those features. Multitouch and pinch-to-zoom is over-rated generally, and as for the bounce-back, it’s a waste of CPU cycles.
Obviously there are two possible outcomes from an Android perspective. Either the patents are circumvented and Android users get an arguably lesser experience or the manufacturers stump up the licensing fees.
But there is a third way…Wouldn’t it be great if, as an Android consumer, one could choose whether to avail of certain patents or not? You could accept the Apple licensing and pay the extra $30 or else decline and get the non-infringing version. How brilliant would that be and it would let the market decide which patents are valuable and which aren’t.
Of course, the chances of it happening are slim but remember Google and Samsung, you read it here first.
U.S. Federal Judge Richard Posner of U. S. District Court for the Northern District of Illinois ruled on Friday, June 22, 2012, that Apple cannot seek an injunction against Motorola Mobility in Apple’s lawsuit about smartphone patents. Judge Posner has thrown out the case “with prejudice”, which means that neither Apple nor Motorola can refile this case. There is the potential for an appeal to be filed.
Judge Posner has not been pleased with this lawsuit from the beginning. He has already ruled that the testimony of some expert witnesses was inadmissible. Earlier this month he came to the conclusion that the case would be dismissed, and he canceled the trial date. But later on, Apple requested for a hearing where both Apple and Motorola could make their arguments for damages claims. Judge Posner agreed to that. After hearing the arguments, Judge Posner was very unimpressed.
In regards to why he threw out this case “with prejudice”, Judge Posner said:
“It would be ridiculous to dismiss a suit for failure to prove damages and allow the plaintiff to refile the suit so that he could have a second chance to prove damages”.
In short, the Judge concluded that Motorola can’t obtain an injunction against Apple in relation to patents that Motorola licensed under FRAND, (which stands for fair, reasonable, and nondiscriminatory) terms. Once you do that, the implication is that a royalty is adequate compensation for a license to use that particular patent.
He described Apple’s legal tactics as follows:
“A patentee cannot base a claim to an injunction on a self-inflicted wound, such as sponsoring a damages expert who prepares a demonstrably inadequate report”. He also went on to say: “in its latest written and oral submissions Apple attempts what I told its legal team at a pretrial conference I would not let it do in the liability trials then envisaged: turn the case into an Apple verses Motorola popularity contest. Apple wanted me to allow into evidence media reports attesting to what a terrific product the iPhone is”.
Every week we hear either a patent that Apple applied for, then the next week it’s a story on how Apple is suing another company for their patents. Some of these patents are pretty ridiculous. Some of it feels more like a squatting practice. So when will patent squatting become more a monopolistic practice for a company like Apple?
Owning a patent is pretty easy. You create something, then go to the patent office, make sure no one else has something similar and patent it. If someone is watching your patent, they can make changes and patent it for themselves.
Case in point: I remember a story about a little girl that invented the clip for your sunglasses onto a visor. A patent was issued for a metal clip, but someone found it and changed the design, using plastic. The end result was the little girl was out millions.
Then there is the option of wading through all the patents, find something that doesn’t have one and patent it. I remember when someone found that pnumatic tires were not patented (or the patent expired), therefore applied.
This week, it’s Apple going after Samsung Galaxy devices. More specifically, the look and feel of the Samsung devices are too close to Apple’s. They are even complaining the packaging is too close to Apple’s.
While I understand looking too close in packaging, I don’t understand on looking in devices. In some cases, it might actually be the opposite.
After all, Samsung put out a white tablet before Apple did.
Still, let’s look at the Galaxy line. The only thing that looks “Apple-ly” is the top of the device. The Galaxy S has a square button and a contoured design in the back. The bottom “call” buttons look a little like an iPhone’s. Yet, the icons are squared – not rounded like iPhone.
Nitpicking on patents sometimes seems to be really petty. There are some cases where it’s important, but a patent on how you can unlock a phone using a graphic? A visual experience when flipping through songs?
When does it become too much? Can it become a monopolistic practice? I am not a patent lawyer, but if Apple has patent complaints on each mobile device, Apple could work out a deal with the companies, then get a percentage of any device you end up buying.
When does it become a non-Apple patent? How much of a “Graphical experience” must I change to be able to unlock a phone?
A few months ago we learned about certain patents in Android that Apple owned. It also risked certain open-source programs because of functions that were under the microscope.
Can a patent become open-source?
So if I put together a new mobile device, I could easily be hit with an infringement if my look and feel of anything matches that of others. It’s not just Apple, either.
One of the positive points to HP buying WebOS last year was they obtained not only the patents by Palm, but also by all the companies that Palm ended up consuming (Handspring, for example). They are older patents, but definitely cases could be made.
Then you have the opposite – Microsoft vs. i4i. Microsoft wants to make the challenge process more complex. If the challenger doesn’t have their paperwork in order, they could easily loose. In i4i’s case, they sold the product for 4 years before applying. That could invalidate the patent simply because of it’s prior use and saturation in the marketplace. After all, you cannot throw out seeds out of a plane, then lay claim to all the plants that are grown.
Back to Samsung – Apple. Once again, I see some things that Samsung should change to not mimic the iconic iPhone. With these software changes, the phone looks different. Apple holds a lot of cards in mobile devices. No different than Microsoft holds in Windows, IBM holds in servers and Facebook holds in social networking.
Let’s just hope that these lawsuits don’t hold off a company that makes the next big thing in technology.
Word (yes, pun intended) comes today that a Federal District Court judge has barred the sale of Microsoft Word until further notice. The ruling stems from a patent infringement lawsuit brought byI4i, a software company located in Toronto, Ontario, Canada. The infringement relates specifically to customized XML being used in the creation of XML and/or DOCX files. In addition to the ban on sales of Microsoft Word, part of the Microsoft Office Suite, Microsoft has been ordered to pay over $287 million in restitution and damages.
Microsoft plans to appeal the decision, which means that any implementation of the ban could be put off indefinitely.
In the meantime, Microsoft can start working on removing XML functionality from Word or find another workaround to the ban. And I imagine with a bit of extra greasing of palms, this whole thing will go away as if it never happened.
Here is the summation of the ban from the court record:
Microsoft Corporation is hereby permanently enjoined from performing the following actions with Microsoft Word 2003, Microsoft Word 2007, and Microsoft Word products not more than colorably different from Microsoft Word 2003 or Microsoft Word 2007 (collectively “Infringing and Future Word Products”) during the term of U.S. Patent No. 5,787,449:
1. selling, offering to sell, and/or importing in or into the United States any Infringing and Future Word Products that have the capability of opening a .XML, .DOCX, or .DOCM file (“an XML file”) containing custom XML;
2. using any Infringing and Future Word Products to open an XML file containing custom XML;
3. instructing or encouraging anyone to use any Infringing and Future Word Products to open an XML file containing custom XML;
4. providing support or assistance to anyone that describes how to use any infringing and Future Word Products to open an XML file containing custom XML; and
5. testing, demonstrating, or marketing the ability of the Infringing and Future Word Products to open an XML file containing custom XML.
IBM has applied for a patent for a “system and method for extracting value from a portfolio of assets”, filed in April, but becoming public on October 18. While the Slashdot article infers that it is a formalisation of a patent protection racket (which is loosely the large company version of what a patent troll does) it is unlikely that IBM would try to patent this style of operation. Too much prior art.
This appears to be my un-lawyerly eyes to be ‘patent-troll’ insurance. One method to protect yourself from certain types of patent claims is to have a protective portfolio of patents yourself. A suit of patent infringement can then turn into a case on who’s patent is valid in that case. For an opportunistic claimant, pursuing a case against you is harder and more risky.
IBM has lots of patents (over 40,000 according to them) and are highly skilled in IP law. The thought of having to defend themselves against a rival IBM patent would be a negative motivator to a prospective lawsuit. For a small to medium company to have access to this protection would be worth some money.
For IBM this also would simplify the management of their IP and make it easier for others to license IBM technology, which increases the revenue potential for them. While it appears to be a good business idea, whether it should be patentable is another matter. I have a personal dislike of patenting business models or ideas, or of the patenting of the use of a technology. Maybe a lower class of patent needs to be introduced, where the patent office can say “yeah, interesting idea but a bit anti-competitive to have a patent. Have 2 years of exclusivity only.”
Sean Lyndersay a member of the Microsoft RSS team has responded on the Microsoft Team RSS blog on the Microsoft RSS fiasco, and after reading the post I can tell he was painfully careful in his words.
According to Sean they are essentially claiming innovation in a number of areas, and while I do not see innovation in their application as their in my opinion is plenty of prior art this sadly this will be up to the patent office to determine.
What I would like to see though as others in the space have been calling for, is official assurance from a officer of the corporation that they are using the patent as a defensive filing only. [Microsoft Team RSS Blog]
As I have been watching the Microsoft Syndication (RSS) Patent dispute over the past couple of days the single word that comes to my mind is “Arrogance” and lets look at the definition of the word Arrogance.
Arrogance – Overbearing Pride evidenced by a superior manner toward inferiors
Microsoft’s actions are such that they have made it very evident that they do not respect those that should rightfully be labeled as inventors of RSS and they outrightly slap those that developed RSS in the face.
The overall debate in the community has been quite negative with a few voices asking for reasoning. In my opinion big corporations are always looking to use their muscle and lay claim to something they have no right to lay claim to. When Microsoft came to Gnomedex in 2005 and announced how they were going to have RSS/XML integrated into there forthcoming applications I think we were all pretty much pleased.
But the current situation with this patent application has a lot of people pissed off and highly concerned. There are a lot of prior art issues and I think Microsoft will have an up hill battle on its hands to get this approved, but they have a army of patent lawyers, and I am sure that the patent office treats Microsoft patent applications a lot more seriously than the average persons application.
I am hoping that Microsoft will make an official statement on the issue but I am not holding my breath. If the succeed in getting this patent approved it will be a great tragedy and I am sure the source of some serious litigation.