Appeals Court: It Is In The Public's Interest That Samsung Not Be Allowed To 'Slide To Unlock' Devices

from the wait,-what? dept

The patent fight between Apple and Samsung has been going on for many years now with Samsung being told to pay a lot of money to Apple. But on one point Apple has been unsuccessful: getting an injunction barring Samsung from offering products for sale that include the “infringing” inventions — such as the concept of “slide to unlock.” I still have trouble understanding how “slide to unlock” could possibly be patentable, but there it is: US Patent 8,046,721 on “unlocking a device by performing gestures on an unlock image.”

After bouncing around a bit, the question of the injunction landed at CAFC, the appeals court for the Federal Circuit — which is the appeals court that handles all patent case appeals. It’s also the court that has a pretty long history fucking up the patent system. Separately, some background on the whole injunction thing: for many years, it was believed that if you infringed on a patent, beyond monetary damages, courts would always award an injunction, blocking the manufacture or sale of the product without a license. This was based on the idea that patents give you an “exclusive right” and without an injunction — but just monetary damages — it could be (weakly) argued that this was a form of a compulsory license. That went out the window almost a decade ago when the Supreme Court, in the MercExchange case rightly pointed out that automatic injunctions are ridiculous and likely harm the public. The Supreme Court rightly found that an automatic injunction often went too far in hindering innovation and went against the public good.

In this case, the lower court denied Apple’s request for an injunction — pointing out (rightly so) that there’s no “irreparable harm” in letting Samsung “slide to unlock,” but CAFC disagrees and has sent it back to the district court to try again. The reasoning is… troubling, to say the least. It highlights, once again, how the judges on CAFC seem to be strongly influenced by the patent bar, and are so immersed in the world of patent lawyers that they’re completely disconnected from the real world. They even go so far as to directly claim that an injunction better serves the public interest. Yes, removing a product so the public can no longer get it — even if it’s a good product and people want it — somehow serves the public good… “because intellectual property.”

Indeed, the public interest strongly favors an injunction. Samsung is correct?the public often benefits from healthy competition. However, the public generally does not benefit when that competition comes at the expense of a patentee?s investment-backed property right. To conclude otherwise would suggest that this factor weighs against an injunction in every case, when the opposite is generally true. We base this conclusion not only on the Patent Act?s statutory right to exclude, which derives from the Constitution, but also on the importance of the patent system in encouraging innovation. Injunctions are vital to this system. As a result, the public interest nearly always weighs in favor of protecting property rights in the absence of countervailing factors, especially when the patentee practices his inventions.

This is circular reasoning at best. What’s funny is that CAFC briefly gets at the truth in noticing that, in most cases, an injunction will work against the public interest, and finds that truth so distasteful to its love of the patent system, that it says it must obviously be false. Yikes. But the reasoning here is tautological. The argument, when parsed out is basically “patents encourage innovation” -> “patents allow injunctions” -> “injunctions must be in the public interest.” But that’s wrong, because it falsely assumes that patents actually do encourage innovation or that patents themselves are, absolutely, in the public interest. There are some cases where they likely are, and many cases where they likely are not. To automatically assume injunctions must be in the public interest is just wrong.

There’s also a long discussion about whether or not people were actually buying Samsung devices because of “slide to unlock,” which seems pretty ridiculous, but the court actually thinks there are people out there who chose Samsung over the iPhone because of slide to unlock. CAFC sets up a ridiculous standard on that front, first saying that because it would be difficult to show that slide to unlock was the key reason that people bought a Samsung phone, it’s okay to show that there is “some connection between the patented features and the demand for Samsung’s product.” But that standard is ridiculously low. And it allows the following analysis that basically says “because Samsung liked slide to unlock, it must be important.”

The record here establishes that these features do influence consumers? perceptions of and desire for these products. The district court wrote that there was evidence that Samsung valued the infringing features, including evidence that Samsung ?paid close attention to, and tried to incorporate, certain iPhone features,? which was ?indicative of copying.? … This included evidence that Samsung had copied the ?slide to unlock? feature claimed in the ?721 patent, such as ?internal Samsung documents showing that Samsung tried to create unlocking designs based on the iPhone,?

But that’s no standard at all. Under that standard, basically any infringement can be shown to have “some connection” to demand for the product. The court also does present a study — done by someone hired by Apple, of course — claiming that people wouldn’t have bought Samsung’s phone “without the infringing features,” but that seems pretty dodgy. I’d like to find a single real life person who looked at a Samsung Galaxy device and though “gee, I would have bought this if only it had slide to unlock.”

There’s a concurring opinion from Judge Jimmie Reyna, in which he argues — apparently with a straight face — that not granting an injunction could harm Apple’s reputation as an innovator. Really? Apple has a long-standing reputation as a very innovative company, but not based on its patents, but rather based on it taking many ideas (including many from others) and making much better, more desirable products out of them. Samsung coming out with copycat devices doesn’t strip away Apple’s reputation as an innovator, it enhances it, because everyone sees that Samsung is desperately trying to catch up to Apple.

Apple?s reputational injury is all the more important here because of the nature of Apple?s reputation, i.e., one of an innovator (as opposed to, e.g., a producer of low-cost goods). Consumers in the smartphone and tablet market seek out innovative features and are willing to pay a premium for them. Sometimes consumers in this market will even prioritize innovation over utility. A reputation as an innovator creates excitement for product launches and engenders brand loyalty. Samsung recognized the importance of such a reputation and set its sights not on developing more useful products, but rather to overcome the perception that it was a ?fast follower.?

There is a dissent from the Chief Judge of CAFC, Sharon Prost (who has appeared to be much more reasonable than many of her colleagues in decisions) saying that “this is not a close case,” and it’s bizarre that the others on the court believe an injunction is appropriate. As Prost rightly notes, these are really minor features we’re talking about and it’s absolutely crazy to argue that there’s irreparable harm if Samsung keeps using them.

This is not a close case. One of the Apple patents at issue covers a spelling correction feature not used by Apple. Two other patents relate to minor features (two out of many thousands) in Apple?s iPhone?linking a phone number in a document to a dialer, and unlocking the screen.

Prost slams her colleagues for the procedural way in which they claimed the lower court made a legal error, pointing out that the majority fails to actually explain what that legal error was. Then, she points out that the majority basically makes up evidence that isn’t actually in the record to support its position.

the majority?s ?carriers? or users? preference? theory was not mentioned at all by the district court. The majority asserts that ?[t]he district court acknowledged that Apple presented evidence that carriers (?721 patent) and users (?172 patent), not just Samsung, preferred and valued the infringing features and wanted them in Samsung phones.? … The majority again quotes nothing from the district court?s opinion to show there is such an acknowledgement. Again for good reason: there is nothing. As the majority notes just two sentences later, the district court ?failed to appreciate? that the evidence cited by Apple ?did not just demonstrate that Samsung valued the patented features, but also that its carriers or users valued the features.? Id. The district court could not have ?acknowledged? what it ?failed to appreciate.? The majority reaches its creative interpretation of the evidence to find ?carriers? or users? preference? all on its own.

Then she trashes the majority’s argument that because Samsung copied Apple’s features, it must be because those features were demanded by the market — and points out it’s especially ridiculous with one of the patents that Apple didn’t even use in the iPhone.

the majority states that ?[t]he district court wrote that there was evidence . . . ?indicative of copying.??…. The quotations upon which the majority relies, however, are not the district court?s findings. Rather, they are the district court?s recitation of Apple?s contentions, with which the district court disagreed. As the district court noted, ?[w]hile indicative of copying by Samsung, this evidence alone does not establish that the infringing features drove customer demand for Samsung?s smartphones and tablets.?…. The district court, of course, did not mean that Apple proved copying for all three patents-in-suit. As the district court noted, Apple did not practice or allege copying of the ?172 patent…. The district court also rejected Apple?s only support for its contention that it practiced the ?647 patent… (finding Apple?s only evidence of its own use ?did not directly equate asserted claim 9 of the ?647 patent with ?data detectors??). Without Apple practicing these patents, Samsung obviously could not have copied the patented features from Apple?s products.

Prost also notes that merely copying another’s product is not enough evidence:

This conclusion is contrary to our precedent. As the district court stated, ?the parties? subjective beliefs about what drives consumer demand are relevant to causal nexus, but do not independently satisfy the inquiry.?

Finally, Prost takes issue with the claim by the majority that it’s nearly automatic that an injunction is in the public interest, because “intellectual property.” As Prost points out (as we did above), that’s getting the issue totally mixed up in a tautological way:

I agree with the majority that the public?s interest in competition, without more, does not necessarily decide this factor against granting an injunction. But it does not follow that the public interest ?nearly always? favors granting an injunction as the majority states.

She goes on to cite the MercExchange case, detailing how when the patents only cover a tiny part of the product, it makes little sense to issue an injunction, and further noting that the issue of irreparable harm is totally separate from the question of the exclusive right in the patent itself. In other words, just because we have the patent system, it doesn’t automatically mean that injunctions are good, as the majority argued.

It will be interesting to see what happens next, but if this one goes back to the Supreme Court, it would seem like yet another opportunity for the Supreme Court to smack CAFC around for getting basic patent law wrong.

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Companies: apple, samsung

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Comments on “Appeals Court: It Is In The Public's Interest That Samsung Not Be Allowed To 'Slide To Unlock' Devices”

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77 Comments
That One Guy (profile) says:

Small things can matter

There’s also a long discussion about whether or not people were actually buying Samsung devices because of “slide to unlock,” which seems pretty ridiculous, but the court actually thinks there are people out there who chose Samsung over the iPhone because of slide to unlock.

You may be mocking their argument, but I can say with certainty that sometimes small, even simple things can absolutely affect purchasing decisions. For example, if I see ‘Apple’* on the package, I know not to buy it. If one single word can affect purchase choices, surely it’s not much of a stretch to have one tiny feature also do so, right?

*Or Microsoft, Sony, Nintendo, EA, any *AA affiliated studio or label…

Anonymous Coward says:

Re: Re: Re:

Let’s say you own a television. If we take that television from you against your will and give it to orphans, that would benefit the orphans more than it benefits you. Is taking the television from you thus in the public interest? I think not. We recognize that protecting property rights is itself in the public interest.

Anonymous Coward says:

Re: Re: Re:2 Re:

Whew! Thank goodness we’re not talking about actual property here, or you might have a point.

I know you guys like to think it’s not property, the fact is that, legally speaking, it is. The court here says it’s property numerous times. You’re starting from the wrong premise. When you start with the correct premise, which is that patents are property rights, then the court’s statement about the public interest favoring an injunction makes sense. Your problem isn’t with the notion that property rights should be protected by an injunction consistent with the public interest. Your problem is with the court’s premise that patents are property. The problem with your problem is that, undeniably, patent rights are property rights.

ottermaton (profile) says:

Re: Re: Re:3 Re:

Legally speaking, what you say is true.

Remember when actual living, breathing human beings were also legally speaking property? aka slaves

We prefer to protest obvious fallacies and legal constructions that fly in the face of common sense and fairness.

Your problem is you prefer to justify a broken system and continue to lick your masters boots.

Anonymous Coward says:

Re: Re: Re:3 Re:

Ideas are not property. A patent is a contract between the government and the patentee. Contract rights can be bought and sold like property, but that doesn’t mean that contract rights are the same as property rights. And pointing to the CAFC using the word “property” does not prove anything other than how confused the CAFC is.

Mike Masnick (profile) says:

Re: Re: Re:3 Re:

I know you guys like to think it’s not property, the fact is that, legally speaking, it is.

We’ve discussed this. The patent itself is a form of property. However, the underlying invention IS NOT. The patent is a bundle of rights and those rights can be bought and sold like property.

https://www.techdirt.com/articles/20150501/16584030850/how-to-use-intellectual-property-properly.shtml

But that’s different than the underlying invention. And when you understand that you quickly realize that an injunctions absolutely does not make sense, because now you’re actually interfering with someone else’s legitimate property rights.

It would appear you are confused.

Mike Masnick (profile) says:

Re: Re: Re:5 Re:

But Mike, isn’t one of those “bundle of rights” the right to exclude?

Yes, but that’s a separate issue. The original comment was arguing that because the underlying invention is a property right, it’s right to claim that injunctions should be standard.

But the “right to exclude” is limited under patent law, and it’s not because it’s a property right. It’s a separate right that is limited — for example by the question of whether it’s in the public interest to exclude.

People arguing that this makes sense because it’s a property right are conflating two separate issues to make their argument. And that’s wrong.

Mike Masnick (profile) says:

Re: Re: Re:6 Re:

He always does that. It makes him come across as a conceited little prick.

Interesting. I will admit that I sometimes can get snarky, but looking at my original comment and my reply I don’t actually see any snarky lines. The original I closed with “It would appear you are confused.” That’s just a statement of my opinion. It neither is, nor was meant to be, snarky.

On the other hand… your closing line…

Wendy Cockcroft says:

Re: Re: Re:4 Re:

The patent is a bundle of rights and those rights can be bought and sold like property.

That’s where the problem begins, Mike. Maximalists have an imperialistic take on this that requires constantly expanding their “territory.” I can’t help thinking that if we took the property aspect away, however reasonable it sounds to sane people, it would solve the problem.

These people don’t DO compromise.

Anonymous Coward says:

Re: Re: Re: Re:

Let’s say you own a book. If we copy that book against your will and give the copy to orphans, that would benefit the orphans more than it benefits you. Is copying the book thus in the public interest?

I’ll leave the answer up to the reader.

We recognize that while protecting property right is itself in the public interest, intellectual property is NOT property.

Anonymous Coward says:

Re: Re:

Oh look, Masnick thinks that violating IP rights is in the public interest. Glad he made that clear, not that it wasn’t already.

Well good for Masnick – I’m right there with him. “IP rights” -at least as mostly currently implemented – are largely an abomination and most of them are harmful enough that I wouldn’t rate them being held a “crime against humanit” to be too harsh.

Thanks for this strangely worded praise for a truly good man.

Anonymous Coward says:

Re: Re: Re:

Also interesting that a minor feature in Samsung’s phone (not the slide to unlock one) is fueling an injunction under claims it was unfairly copied from Apple’s phone WHEN APPLE DOESN’T EVEN INCLUDE THE FEATURE IN ITS PHONE and Samsung’s version isn’t an obvious interpretation of the patent as filed.

So Apple is trying to get an injunction partly based on a patent they own but have never used, that describes how to do something that could be found similar to what Samsung has done, but isn’t the same. And CAFC agrees that such an injunction protects the public interest. That’s messed up.

Anonymous Coward says:

Re: Re: Is it really innovative?

I prefer “lift latch to unlock” on my gate latches; slide to unlock always pinches my finger, jams if the hinges settle, and provides little added strength. For more protection, a 4-way sliding bolt system with locking wheel is the way to go.

And on those lines, I think Samsung should push out an update replacing Slide to Unlock with “Rotate to Unlock” – draw a circle on the screen to unlock; that will not only avoid the silly patent, but also be much more difficult to accidentally trigger.

And no, I haven’t patented the idea, and this can stand as prior art if anyone does attempt such a thing.

Anonymous Coward says:

Re: Re: Re: Is it really innovative?

Hmm… this just gave me an idea for a more secure password entry system too… instead of a number pad (which has a thermal signature, telltale grease marks, etc), why not use a rotary dial entry system? Should be much more secure, and almost as easy to use. As an added bonus, the wheel could start in a randomized position, so you’re not always tap-dragging the same portion of your screen.

Anonymous Coward says:

Funniest point in this is how iOS 9 directly (and somewhat blatantly) records everything you do or say (mic constantly on) and stores everything in apple’s shiny new HQ…forwarding a full copy to the NSA of course.

iOS9 being the OS also ensures encryption is essentially useless since it takes pre-encrypted data and copies it for whatever the hell Apple wants.

Samsung can be ordered to pay whatever it wants but Apple is heading for a shitstorm of biblical proportions….

Anonymous Coward says:

Re: Why didn't this end with one picture:

Exactly. There are many “digital” metaphors for real life objects because people are familiar with interacting with these objects. Files and folders are any good example. Just imagine ff Apple was able to patent “files and folders on a computer” and prevent others from using the same (obvious) concept.

Whoever says:

Apple an "innovator"?

Apple is not an innovator at all. What’s the common joke about predicting new features on the iPhone? “Look at what was new on Android 2 years ago.”

What Apple does it to take existing features and ideas and polish them: implement the features in a more user-friendly manner. That’s not innovation.

Slide-to-unlock is ridiculous. The basic idea was used on a cellphone before Apple “invented” it.

Anonymous Coward says:

Re: Apple an "innovator"?

We’ve had this discussion many times before.

Taking existing features and ideas and implementing them in a more usable manner is indeed innovation. It’s just not a clean-room invention.

The last Apple Invention I can think of is…
…actually, I can’t think of one. Even Woz’s floppy disk was just innovation; he found a way of avoiding hard sectoring the disk using software. That innovation is STILL used in all spinning platter storage today.

Anonymous Coward says:

“”unlocking a device by performing gestures on an unlock image.” “

Broadly speaking can’t a password/passcode screen that unlocks a phone be covered by this patent? So what now, does Apple have a patent on passcodes too?

This is a dumb patent that’s a result of a very obvious idea. The idea that you can require a certain input sequence to indicate that you wish to access the phone or a device. But a password covers that general idea and has been around for a long time. Just because the idea is now on a tablet or phone it’s patentable?

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