Over the years Apple has surprised the world by taking old tech, optimizing it and then pushing out to the world as their own. They can do this thanks to having one of the best marketing teams in the world and until recently having a leader that believed his own legends. This has led to a string of patents that are built in the ideas and often inventions of others. To say that the US Patent and Trademark Office simply rubber stamps these is an understatement. In some cases there is no way that they could not know that the patent in question was covered in prior art.
There is a phrase in the patent world that used to mean something, but now seems to have lost its meaning: prior art. The term according to Miriam Webster means: “the processes, devices, and modes of achieving the end of an alleged invention that were known or knowable by reasonable diligence before and at its date —used chiefly in patent law”. To put it simply prior art is any technology, device, papers, theory, etc. that was publicly known at the time of “invention” and before the patent filing which could have influenced (or actually did) the inventors.
The day following the Verdict from the 9 member jury we poured through the amended worksheet and noticed some very unusual things about it. We stated that it appeared that the jury had predetermined guilt and then spent the majority of their time figuring out how much they should make Samsung pay Apple. This was before any of the jurors had started to cash in on their “fame” and began the rounds with the tech press and TV. Now that at least one member of the jury and the jury foreman have come out and made public statements their intentions in producing the verdict are clear making Samsung’s bid to get it overturned a little easier… if Judge Koh at least attempts to play this one fairly.
Judge Lucy Koh has asked that Samsung and Apple executive meet for a third time. Her request for a peace talk is coming with only about a day and half of Samsung’s presentation in the bag. This move seems a little odd to us considering her defiance in allowing for key pieces of Samsung evidence to be shown to the jury and her refusal to throw out some Apple patents based on Prior Art.
In following a trial as big as the Samsung V Apple trial there are small things that popup over the course of a case this large and this public. We have already found out that both Samsung and Apple tend to release the number of units “shipped” to investors rather than the number of units actually sold. This is not an uncommon item as when product is shipped to a company like Best Buy or Target they are still listed as a unit “sold” for many companies. But there are other items that come out as well; one of these is only visible if you look closely. This is the strength of the actual claim(s) involved. Although both sides often object just to make things annoying for the other what we have noticed is that Apple appears to want considerably more real data and evidence blocked than Samsung.
Ok, so I have this truck that I designed it is about 20 feet long and a little over 10 feet tall. The truck weighs 4 tons and comes only in black. I want to sue you because you built a sub-compact car that has four tires. This is the equivalent of what the “High” court in Germany has done by banning the Galaxy Tab 7.7 claiming that it resembles the iPad. The court’s reasons? Well they seem to think that the Tab 7.7 has sides and a back that looks like the iPad which makes it an infringing product and warrants a complete ban on the product throughout the European Union. Makes sense right?
It is a sad day when our lawmakers call a bill designed to trample innovation “reform”, but this is what has happened with the latest version of the “America Invents” act. The new bill has just passed the Senate and is expected to be signed into Law by President Obama in the near future. Now you might be wondering what I am talking about with this new bill. The new bill sponsored by Vermont Democrat Patrick Leahy has been lobbied for by the big corporations like Microsoft, Apple and others that tend to use concept patents as weapons to stifle competition instead of real and working inventions. These same companies also tend to “borrow” ideas, names and concepts from different places (like Apples use of the name iPhone which was owned by Cisco at the time).
What Apple and others have asked for (and gotten) is a change from first-to-invent to first-to-file. Basically what is happening here is that you do not actually have to produce anything anymore. All you have to have is a mountain of lawyers that can force any “concept” you want through the patent office. On top of all of that they have gotten a flat fee for Patents (although the fee is not actually known yet) which (so far) the Patent Office will get most of. However, that could change as Congress has a way of dipping into this money (having diverted about $900 Million in the last couple of years). They did tack on a review process for people to dispute patent that have been granted, but the time window for this is only 90 days from the date it is granted. Really the window should be more like one year, but that will never happen. There were some attempts to make this a real reform bill; some were asking for an outright ban on any diversion of funds, but the Bill’s sponsor said that anything like that would make the bill unlikely to pass (which shows you where some minds in Congress are). Some members of Congress are crowing as if they have just made sweeping reform when all they have done is encourage patent trolling.
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In the recent patent wars between Apple and, well just about everyone else you hear a lot about Prior Art. This is when someone can point to something that was created or in use before the item in question was patented. For example, if I tried to patent a circular disk intended to hold data, video or music I would not get it because of the CD-ROM, the DVD-RROM etc. So what about Apple’s recent legal action against Samsung? They claimed that the Tab 10.1 was a copy of the iPad and violated their patent. However, there is plenty or prior art to invalidate the concept design patent for the iPad.
One of the funniest that Samsung has brought to bear in the case is a screen shot taken from the Stanley Kubrick Movie “2001: A Space Odyssey” where two of the astronauts are sitting watching a video feed on a tablet device. Now Apple fans will say that Apple is allowed to patent this because Mr Kubrick did not! So since they (Apple) spent their hard earned money to take this concept and make it real they deserve the patent. Well there are two problems with that argument. First of all there were real tablets in existence before the iPad was even put to paper. But the second and one that I find the most ironic is that every movie is by its nature copyrighted. So images, concepts and ideas are considered the property of the copyright holder. This means that Apple violated Copyright when they designed the iPad.
Something to think about while we all wait for more interesting news.
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Apple has been having a blast dropping patents for vague concepts and even an entire device type (with their pending Pico Projector patent) regardless of prior art and at times regardless of if the patent is actual technology or not (the look and feel of something). Then they take these patents and wave them in the face of judges that have no real idea of what the patent is (or is not) covering asking for injunctions and outright bans on products from companies that are relatively underfunded in the legal department. If you ask Apple about this they will stand and say that they are protecting their Intellectual Property (which in many cases was “borrowed” from another company that cannot afford a legal fight with Apple like S3). This abuse of the patent and copyright system is detestable, but is an article for another day.
The question I am wondering is, why has Apple not gone after Microsoft? Windows 7 on a tablet has Pinch to Zoom, finger gestures and even the same “look and feel” when you scroll with your finger. Now, I could be wrong, but if Apple is trying to protect their IP you would think they would be going after Microsoft in a big way. I am also pretty sure they would be adding Asus (who has one of the best-selling Windows Based Tablets on the market right now) to their legal wish list as well. So, why do they leave these two obvious copy cats out of the litigation arena?
Well, here are a few reasons that we were able to come up with based on research. Microsoft is safe simply because they have bailed out Apple multiple times in the past and also have several patents and items that Apple needs to survive (Office for Mac is still a huge seller). Whether the Apple faithful and Steve Jobs want to admit it or not Apple owes it very existence to their rival; without Bill Gates and Microsoft we would be talking about Apple in the past tense. Right now Adobe is wishing they had dropped money into that bailout instead of just spending time and money making their products work on Apple’s RISC (Reduced Instruction Set Computer) based systems (the PowerPC days). If they had, they perhaps they would have some leverage in the whole HTML5 Vs. Flash competition. This also applies to Microsoft’s net generation operating system Windows 8. In fact is applies even more as Microsoft is writing it to work on ARM based CPUs. The previews that we have seen also make it very tablet friendly and an obvious threat to Apple’s weakening hold on the tablet market. Yet, we have heard no call to arms from the Apple legal team over this.
So, what about Asus and their tablets? Asus is also untouchable right now because they also have something that Apple wants; A manufacturing facility. Apple has been looking for alternatives to Foxconn due to the bad press surrounding the company’s many suicides. The world now knows that the iPhone, iPod and many other Apple products are assembled there and with the many deaths over working conditions at these plants the eyes are turning to look at Apple. The question has already been raised by many humanitarian groups “why has Apple done nothing about this?” You would think that a company that claims to be so “Green” and Earth Friendly would be appalled by what is happening over there. However, other than a few press releases (which usually tame the faithful) Apple has done nothing. At least on the surface, we have heard rumors that Apple is courting Pegatron as an alternative manufacturing site for the next generation of iToys. If this is true (and as of now we have no evidence to the contrary) then Apple would not want to get Asus upset. After all Asus owns Pegatron. It is their manufacturing company.
So then next time you hear an Apple press representative standing on the soapbox and loudly declaiming how they are protecting their Intellectual Property from the masses of thieves and copy-cats out there, just remember that they are only throwing this around at the companies they feel they can bully into submission. In the end no one likes a bully, and bullies usually reap what they sow in the long run.