GigaOM » Patent Infringement

Apple may have won, but software patents are still evil

Mathew Ingram — Mon, 27 Aug 2012 17:20:34 +0000

In one of the biggest court decisions in recent memory for a technology giant, Samsung on Friday lost a billion-dollar patent-infringement case launched by Apple over the design and functionality of the mobile-handset maker’s smartphones. We’ve written about the implications of this ruling for both companies, and where the case stands to go from here, but when you step back from the specifics of this decision itself, it becomes increasingly obvious that we are all losers in this kind of case — because software and design patents are inherently bad, not just for the technology industry but arguably for society as a whole. Apple’s win may satisfy its fans, and Samsung may be able to recover from the ruling, but that doesn’t make it right.

As my colleague Jeff Roberts has reported, this case was launched by Apple against Samsung last year, based on what Apple said was Samsung’s wilful infringement of software-related “utility” patents and four design-related patents it holds for the iPhone and iPad. According to Apple, the company’s smartphones — including the Nexus S, Epic 4G and Galaxy S 4G — copied elements of the design and functionality of Apple’s iPhone models, and the Samsung Galaxy Tab copied design and functional aspects of the iPad. In its statement of claim, which contained drawings that jurors relied on to decide the case, Apple said:

“Rather than innovate and develop its own technology and a unique Samsung style for its smart phone products and computer tablets, Samsung chose to copy Apple’s technology, user interface and innovative style in these infringing products.”

Did Apple really suffer because of another phone’s shape?

From a legal point of view, there appear to be a number of questionable factors involved in the jurors’ decision in this case, at least according to Groklaw, including a debate over whether the jury actually understood the specifics of what they were being asked to do, and whether they ignored certain aspects of the case in their desire to penalize Samsung. That could lead to the case being successfully appealed, but even if it isn’t, or if the appeal fails, the Apple-Samsung decision adds even more weight to the argument that software and design patents are evil and that the entire patent process is badly flawed — if not broken.

As part of the case, Apple obviously argued that it suffered irreparable harm from Samsung’s alleged copying of its design and functionality. But has it really suffered competitively? It’s hard to see how, considering the company is the world’s most valuable publicly-traded entity, with a market value of over $600 billion, and its mobile products are the market leaders in almost every category. How much more successful could it possibly be? And now, the legal ruling gives it even greater power to beat up on Google and Android — is that really a win for the technology industry or for society as a whole? It’s difficult to see how (and let’s not forget that Apple doesn’t need software patents to protect it from knock-offs — it has trademarks, trade dress and a series of other legal tools that will do that too).

Defenders of the case, and of patent laws in general, would likely argue that it doesn’t matter how large or successful Apple is: the point is that Samsung did something wrong. But what exactly do we mean by this statement? Two of the design patents involved in the case describe the way in which the iPhone is rounded at the corners and flat on the top, and another refers to the way that icons appear on the screen. Among the utility patents involved are those related to the “bounce back” or “rubber band” feature in some of Apple’s apps — in which the screen rebounds after the user pulls it in one direction or another — and to the “pinch to zoom” functionality used for images.

One designer said that the pinch-too-zoom gesture has become so ubiquitous for mobile devices and apps of all kinds that it is like claiming ownership over the idea of a circular steering wheel. Would we be better off if one company controlled the rights to the steering wheel and could charge huge sums to all manufacturers for using that design element? Probably not. But Apple could now do this with pinch-to-zoom, as well as other design and utility features, giving it an even bigger lock on the mobile device business than it already has — despite the fact that there is evidence that similar gestures existed before Apple patented them.

Update: Nilay Patel at The Verge notes that none of the patents in the Apple-Samsung case specifically refers to the pinch-to-zoom process, although several cover related multi-touch elements of the interface and one covers the tap-to-zoom gesture.

Software patents are nuclear weapons, not defences

Even if you accept that Apple did something unique and revolutionary with the zoom feature that deserves to be protected by the full force of the law, should it have the same rights to a series of icons that are lined up in a specific way on a mobile device? Or to the fact that its device has a rounded screen, or that a window which pops up on top of another window fades away automatically over time? Or the fact that one of its iPhone icons happens to look like a gear, and another looks like a pad of paper? These are the kinds of things software and design patents can refer to.

The fact that software patents can apply to such obvious-looking or even trivial applications of design and usability is why some have described them as evil, and “a cancer” on the economy and society in general. Others have warned for several years about the coming of a software patent “apocalypse” created by multibillion-dollar technology giants accumulating software patents. And in the end, these cases do little to promote any kind of useful innovation — instead, they just tie up the courts and give some companies a nuclear arsenal they can use to attack competitors.

Even some judges — such as the one who recently ended Apple’s patent lawsuit against Google-owned Motorola — have questioned whether certain industries that already experience plenty of innovation (such as the mobile phone business) need to be protected by patents at all, including software and design patents. And research by Harvard’s Berkman Center for Internet and Society has shown that software patents have provided little or no net social benefit over the past decade, despite billions in lawsuits and various legal victories.

In the end, the important question isn’t whether Apple was right to sue Samsung, or whether the Korean manufacturer directly copied elements of Apple’s design for its phones — the question should be what is gained by allowing companies to launch multibillion-dollar cases involving the shape of icons or the swiping motion that users employ to switch pages.

Post and thumbnail images courtesy of Flickr user Stefan

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Noise Free says Apple stole its technology, sues to stop patent claim

Jeff John Roberts — Mon, 09 Jul 2012 20:46:30 +0000

A Silicon Valley firm called Noise Free says it showed Apple its secret noise cancellation technology in a series of meetings but that Apple then turned around and used the technology without permission for its iPad and iPhone devices.

Now Noise Free is suing Apple for patent infringement, trade secret theft and breach of contract. The firm’s complaint, filed last week in San Jose, Calif., also wants the court to declare that Apple is not entitled to receive a pending patent application for noise-canceling technology.

Noise Free’s claim is based on allegations that it “solved the problem” of background noise by developing techniques that detect external sounds and cancel them before they are transmitted into a device’s receiver. For the average consumer, that means the people they talk to on the phone while in public are less likely to hear sounds like buses, office noise or restaurant din.

In its tale of corporate skullduggery, Noise Free claims that it provided Apple with PowerPoint presentations and documentation about how its technology worked and even supplied it circuit boards and a mock-up phone. Its complaint adds that “Apple’s head of mobile phones and tablets was called into the meeting to learn about Noise Free’s technology.”

The company says that Apple then broke off talks in 2009 and ultimately chose another supplier called Audience to provide it with noise-canceling components. Noise Free also claims that Apple filed for a patent in 2010 based on its technology and that the two listed investors on the application had attended the presentations that Noise Free made to Apple. (Apple’s patent application 12/794,643 can be found here.)

Noise Free says that Apple is violating its own patent, US Patent 7742790, “Environmental noise reduction and cancellation for a communications device” and is seeking damages and an injunction against Apple devices.

The lawsuit coincides with a dramatic increase in litigation across the mobile landscape. Our mobile editor, Kevin Tofel, speculates that this could be because we’re at the end of the current mobile innovation cycle.

Apple did not immediately return a request for comment.

Here is a copy of Noise Free’s complaint:

Noise Free v Apple
(Image by Fer Gregory via Shutterstock)

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Social media in Q1: commerce and discovery dominated

Fri, 20 Apr 2012 06:55:19 +0000

Media issues like advertising and discovery along with commerce dominated the activity in social and real-time Web technologies during the first quarter of 2012. Google raised some hackles, Facebook responded to demands from traditional advertisers, and Yahoo got a new chief executive. The quarter also saw Pinterest, the newest social media star, showing signs of staying power; it is starting to be a force in content discovery. This report examines these trends and more, as well as provides a near-term outlook for the next 12 to 18 months.

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German court upholds Galaxy Tab injunction, EU eyes Samsung’s patent claims

Darrell Etherington — Tue, 31 Jan 2012 14:25:49 +0000

Apple won a small victory in Germany on Tuesday as the Düsseldorf Higher Regional Court upheld its decision against Samsung’s Galaxy Tab 10.1. The 10-inch slate is still barred from sale in the country, and the appeals court also determined that the Galaxy Tab 8.9 falls within the scope of that injunction. In the meantime, the European Union is putting Samsung’s recent patent claims under a regulatory microscope.

Samsung has already sidestepped the initial injunction against the Tab 10.1 by releasing the Tab 10.1N in the German market, which features a redesigned case that avoids infringing on Apple’s community design patent. The ruling on Tuesday was based on a violation of German unfair competition law, Florian Mueller of FOSS Patents notes, and not on the original community design the injunction was issued for.

Mueller thinks that the win in the Düsseldorf appeals court is a bit of a mixed bag. On one hand, the ruling is obviously in Apple’s favor. On the other, it doesn’t necessarily apply to the redesigned Samsung 10-inch tablet, so there is no guarantee it will have any commercial impact for Apple. Also, the full-blown proceeding still has to happen, and that’s where the more important matter of Apple’s design patent will take place. Finally, Mueller says that in general, design-related lawsuits will probably have much less of an impact on the final outcome of the intellectual property value between the two companies than technical patent infringement claims, because they are relatively easy to work around.

In what may end up being a much more significant problem for Samsung, Tuesday also saw the announcement of a full-blown investigation of Samsung’s use of its patents, which fall under fair, reasonable and nondiscriminatory (FRAND) licensing requirements. The European Commission had this to say in its formal press release on the issue:

The European Commission has opened a formal investigation to assess whether Samsung Electronics has abusively, and in contravention of a commitment it gave to the European Telecommunications Standards Institute (ETSI), used certain of its standard essential patent rights to distort competition in European mobile device markets, in breach of EU antitrust rules.

Samsung will now face a formal inquiry regarding its claims of infringement on patents deemed to be essential in the EU. The action was likely prompted by Samsung’s infringement claims against Apple, which it went after in multiple EU courts regarding patents carrying FRAND licensing requirements.

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Apple targets Samsung’s phone and tablet designs in Australia

Darrell Etherington — Tue, 20 Dec 2011 15:29:46 +0000

Apple isn’t done with Samsung in Australia, not by a long shot. The California-based consumer electronics giant is targeting Samsung in Australia with another series of patent infringement claims (via Bloomberg), this time related to at least 10 patents tied to the design of the Galaxy Tab 10.1 and Samsung’s smartphones.

Apple’s new claims came to light during a hearing Tuesday, in which Apple was attempting to delay a trial regarding Samsung’s claims that Apple’s 3G-capable mobile devices infringe its wireless patents. The patents in question relate to the design of cases for Samsung’s 10.1-inch tablet and its Galaxy line of smartphones.

In the hearing, Apple asked for more time to prepare its case regarding Samsung’s claims of infringement, which is set to begin in March. Australian Federal Court Justice Annabelle Bennett didn’t make a final decision on Apple’s request for a delay, which comes after Samsung agreed to an expedited trial and agreed not to pursue a temporary injunction against Apple’s devices as a result. Another hearing on Feb. 3 will decide the matter.

Apple has pursued Samsung’s devices for infringement of design-related rights in other markets, but it hasn’t necessarily produced the desired results. In Germany, Samsung got around a ruling against its Galaxy Tab 10.1 design by rolling out the Galaxy Tab 10.1N, a modified version which specifically addresses the patents it was found to have infringed upon. Similar tactics could be used by the South Korean company to sidestep any decisions resulting from design-related action in Australia, too.

Still, this could be just another element of Apple’s death-by-1,000-cuts strategy of winning decisions that force small changes to both device hardware and software, forcing competitors to consider whether continuing to create products similar to Apple’s own is really worth it.

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BT joins the Google patent lawsuit party – who’s next?

Bobbie Johnson — Mon, 19 Dec 2011 15:00:03 +0000

On the scale of surprises, this weekend’s news that British Telecom has become the latest major technology company to launch a patent dispute against Google is not at the high end. After all, the swarm of locust lawsuits gathering over Android is so large that soon the real question won’t be about who’s suing Google — but who isn’t.

Details of the lawsuit were uncovered by analyst Florian Müller of the FOSS Patents blog — who follows the legalities of open source products.

He points out that this filing is the end result of a failed attempt by BT to get Google to pay licensing fees on six patents covering wireless information and location services:

“BT filed its lawsuit on Thursday with the United States District Court for the District of Delaware… BT seeks damages — even triple damages for willful and deliberate infringement — as well as an injunction. The complaint suggests that Google refused to pay.”

BT has since issued a statement confirming the action, which Google has in turn chosen to rebut by suggesting that the case has no foundation, the claims are “without merit” and that the Californian company “will defend vigorously against them”. The truth, as is always the case with patent disputes, is lost somewhere in towering mountains of paperwork and documentation that will take company lawyers months for to sift through.

It’s easy to see BT’s move as just another drop in an ocean of disputes surrounding Android, coming as it does after similar suits from the likes of Apple, Oracle, Microsoft and eBay against Google itself and against manufacturers who sell Android-based phones.

But make no mistake, the British telco’s move does add to the pressure mounting on Google.

Google started with a buccaneering attitude towards mobile patents, motivated partly by its desire to crack open a lucrative new market dominated by long-standing rivals and partly by a stance against ludicrous software patents and patchy enforcement.

But every time the search giant finds itself embroiled in another case, it edges away from its attempt to challenge the patent system and toward being part of it. Indeed, Google’s own chief counsel Kent Walker said earlier this year that despite the company’s opposition to junk patents, it was starting to take an “if you can’t beat ‘em, join ‘em” approach to the whole situation:

The patent system should reward those who create the most useful innovations for society, not those who stake bogus claims or file dubious lawsuits. It’s for these reasons that Google has long argued in favor of real patent reform, which we believe will benefit users and the U.S. economy as a whole.

But as things stand today, one of a company’s best defenses against this kind of litigation is (ironically) to have a formidable patent portfolio, as this helps maintain your freedom to develop new products and services.

Since then, of course, Google embarked on a $12.5 billion acquisition of Motorola Mobility (a deal which has yet to close) which was chiefly motivated by its need to acquire defensive patents.

Google is slowly being maneuvered into a position where it’s no longer going to be a challenger to the system, but a major mobile patent holder and licensee in its own right. And of course the only reason it can get to that position is because it’s used its muscle from the rest of the business to subsidize its entry into mobile.

Using its dominance in search to become dominant in mobile isn’t exactly a Robin Hood move — whatever its motives. Hence the FTC’s antitrust investigation into its activities.

Sometimes there are fights where you wish everybody could lose.

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Apple loses appeal in Australian Galaxy Tab case

Darrell Etherington — Fri, 09 Dec 2011 14:29:38 +0000

Friday was not a good day for Apple’s ongoing global legal efforts. In addition to the German ruling against it in a case with Motorola Mobility, the Australian High Court has also agreed with the Federal Court decision and overturned the ban of the Samsung Galaxy Tab.

Apple had applied with the High Court for special permission to appeal the Federal Court’s ruling from November that reversed the injunction against the Samsung Galaxy Tab 10.1 in Australia. At the time, legal experts in Australia suggested it was a move that wasn’t very likely to succeed, and the High Court’s ruling on Friday affirms that view. Last week, the High Court extended the injunction temporarily in order to provide it time to consider Apple’s request.

Samsung’s victory means it can now officially start selling the Galaxy Tab 10.1 in Australia in time for the holidays, which should salvage the device’s chances of being a viable product in that market. Lawyers for Samsung had previously expressed concern that the continued injunction would prevent Samsung from ever being able to launch the product down under. Now, the Sydney Morning Herald reports the Tab 10.1 could hit stores as early as next week.

The ruling still applies only to the preliminary injunction, and the full case regarding Apple’s claim that the Samsung tablet infringes its tablet technology won’t be heard until sometime in mid-2012.

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Motorola Mobility wins injunction against Apple in Germany

Darrell Etherington — Fri, 09 Dec 2011 13:35:53 +0000

On Friday morning, FOSS Patents reported that the Mannheim Regional Court in Germany ruled in favor of Motorola Mobility in one of the patent infringement cases brought by the company against Apple. It’s a significant ruling that represents a major victory for the company Google is in the process of buying.

The ruling includes an injunction that is “preliminarily enforceable” against Apple Sales International, Apple’s Ireland-based EU wholesale subsidiary. The injunction covers a wide range of products, including all iPhones as well as 3G-enabled iPads, since it deals with European patent 1010336 (B1), which describes a “method for performing countdown function during a mobile-originated transfer for a packet radio system.”

It’s a significant ruling, because although Motorola previously secured a similar injunction against Apple in Germany, that one was based on a default judgment, meaning that Apple never presented a defense in the case. For Friday’s ruling, the court ruled after both sides had the opportunity to present their full arguments.

Apple will no doubt appeal this ruling to the Karlsruhe Higher Regional Court, seeking a stay of the injunction. If it fails in that effort, the Mannheim Regional Court has attached a €100 million ($134 million) bond (much lower than the $2.7 billion Apple was seeking) to the decision, which Motorola would be liable to pay in the event the injunction against Apple is enforced and a later appeal overturns the injunction awarded on Friday.

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Apple keeps Australian Galaxy Tab ban alive for another week

Darrell Etherington — Fri, 02 Dec 2011 13:44:15 +0000

The temporary injunction in Australia against Samsung’s Galaxy Tab 10.1, which was struck down on Wednesday, will remain in effect for one more week, according to a decision by the country’s High Court on Friday. The decision is designed to provide the High Court time to consider a request by Apple for special permission to pursue an appeal of the ban’s reversal by the federal court.

Apple declared its intent to appeal immediately following Wednesday’s ruling, though legal experts at the time wondered about the validity of that course of action. Australian patent lawyer Mark Summerfield even suggested Apple’s legal team may decide to back down on an appeal attempt, given the circumstances of the ruling, but that clearly hasn’t happened. In a statement to IDG News Service, Samsung said that it believes there is no basis for an appeals application.

For Apple, pursuing the appeals process has clear advantages, even if the application is ultimately denied. This week-long stay, for example, further hampers Samsung’s ability to get the Galaxy Tab on store shelves during the busy holiday shopping season. If Apple’s goal with its injunction attempts against Samsung is not to secure cross-licensing deals for patents at issue but to “prevent the launch of the Galaxy Tab” as previously stated, then this delay contributes to that agenda, since Samsung’s lawyers previously stated that the later the launch would have to wait, the more seriously Samsung might have to consider shelving the device entirely in the Australian market.

Apple is also seeking to ban the sale of the Samsung Galaxy Tab 10.1N, a modified version of Samsung’s original tablet designed to get around patent infringement issues that led to a block of sales of the 10.1 in Germany. The holiday season is a particularly crucial time for consumer electronics sales, so a full-court press from Apple at this critical juncture is the logical course of action.

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Australian court lifts ban on Galaxy Tab

Darrell Etherington — Wed, 30 Nov 2011 13:48:09 +0000

The injunction previously won by Apple in Australia against the sale of Samsung’s Galaxy Tab was overturned Tuesday as the result of a Federal Court appeal. The temporary injunction was unanimously ruled against by the court’s panel of judges, who agreed with Samsung on most legal issues brought up during the case, but its ruling can still be appealed by Apple.

Apple has until 4 p.m. local time Friday to file an application for permission to appeal to Australia’s High Court to see if it might reinstate the preliminary ban. Patent expert Mark Summerfield, speaking to Australia’s ITNews, thinks Apple’s counsel may decide to pass on an appeal attempt, which he sees as relatively unlikely to succeed, given the unanimous decision by this court, and the precedents it cited from High Court rulings in passing judgement. Apple at this point, however, intends to apply for special leave in time for the deadline. Apple is also responsible for Samsung’s legal costs incurred during the appeals process, according to the ruling.

After the 4 p.m. deadline on Friday, Samsung will immediately be free to sell its Galaxy Tab in Australia through whatever channels it has in place, with the caveat that it document and track each tablet and related application sale in case a permanent injunction hearing should later go against the South Korean company, and in case Apple is later awarded damages.

Samsung hasn’t yet revealed what its plans for launching the Galaxy Tab 10.1 in Australia are at this point. It earlier argued that if it was prevented from selling the device after mid-October, there would effectively be little to be gained by a launch. But Samsung’s lead counsel in the case argued against the stay that gave Apple until Friday to file for permission to appeal, saying that it would “continue to cause substantial injustice and hardship to Samsung,” as a result of “the pendency of the Christmas trading period.” The statement definitely makes it sound like the Tab 10.1 will hit store shelves in Australia in short order.

The ruling is a major setback for Apple, since it basically takes away the iPad maker’s initial successes in its case against Samsung. That means the burden will once again be squarely on Apple’s shoulders when it seeks a permanent injunction in the full trial to be held next year.

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