by Mike Masnick
Fri, Sep 28th 2012 11:32am
by Mike Masnick
Thu, Aug 30th 2012 11:32am
from the uh-oh dept
As was discussed in the previous post, the jury initially got hung up on the question of prior art on the first patent (7,469,381 -- better known as the "bounceback patent" -- covering how when you scroll and hit the edge of a "page" the screen "bounces back.") However, in this interview, Hogan explains the "aha!" moment he had that led him to suggest to the jury that the prior art doesn't apply:
The software on the Apple side could not be placed into the processor on the prior art and vice versa. That means they are not interchangeable. That changed everything right there.You can see him say this in the video below, around the 3 minute mark:
Once again, we learn why it's silly to have juries determining patent cases.
by Mike Masnick
Mon, Aug 27th 2012 1:01pm
from the backfiring dept
Guy: "Wait, so what they're saying is, Samsung is the same as Apple?"Those aren't the only examples in the post either. He notes that these people don't understand the details, but they seem to have gotten the message that Samsung makes at least an equivalent product for a lot less money... and that's making them a lot more interested in Samsung. Once again, it makes you wonder why Apple didn't just focus on competing in the marketplace, where they had a tremendous brand advantage.
Friend: "I know, right? Makes me think twice about how much I paid for my Mac Book"
Not 10 minutes later, a husband and wife, same newspaper:
Husband: "... Samsung's iPad is the same as Apple's iPad, and I paid how much for the Apple one? Honey, I told you they were a ripoff", after looking up the Samsung tablet on his iPhone.
Wife: "Oh wow," looking at the screen, "... that's a lot cheaper. Think we can return it?"
by Mike Masnick
Mon, Aug 27th 2012 9:30am
from the rushing-to-get-things-done dept
As we said on Friday, that certainly raised significant questions about how carefully the jury actually reviewed the issues in question. While some said it could have just been a clerical error in answering all the questions, that appears not to be the case. Because after the judge instructed the jury to fix the mistakes, they didn't reassign those damages elsewhere, they just wiped them off the slate. Besides, even if you were to argue it was merely a mistake, that's no excuse. This "mistake" could have ended up costing millions of dollars. That's quite a "mistake."
Over at Groklaw, they're discussing this and other evidence of jury misconduct. The awarding of damages for things they found didn't infringe was already pretty bad, but some of the other details highlight how the jury clearly did not read the jury instructions (or bother to comprehend them).
A Reuters interview with the jury foreman demonstrates conclusively that the jury ignored the rules. Foreman Velvin Hogan told Reuters that they wanted to punish Samsung:
"We wanted to make sure the message we sent was not just a slap on the wrist," Hogan said. "We wanted to make sure it was sufficiently high to be painful, but not unreasonable."That sounds nice, except... patent awards are only supposed to be about making the patent holder whole, not about punishing the infringer. And, in fact, the jury instructions clearly stated this:
The amount of those damages must be adequate to compensate the patent holder for the infringement. A damages award should put the patent holder in approximately the financial position it would have been in had the infringement not occurred, but in no event may the damages award be less than a reasonable royalty. You should keep in mind that the damages you award are meant to compensate the patent holder and not to punish an infringer.And yet here's the jury foreman flat out admitting that they decided to use the award amounts to punish Samsung. Elsewhere, it becomes pretty clear that Hogan was hardly an impartial juror. He has his own patent, 7,352,953 on "recording and storing video information." That, by itself, does not automatically make one biased in favor of the system (I know plenty of people with patents who hate the patent system), but he admitted elsewhere that he ended up making decisions based on how he would feel if it was his patent at stake, rather than on what the law actually says -- and then said he needed to rule as if he were speaking out "for all" patent holders. In an an interview with Bloomberg, he made that bias clear:
“When I got in this case and I started looking at these patents I considered: ‘If this was my patent and I was accused, could I defend it?’” Hogan explained. On the night of Aug. 22, after closing arguments, “a light bulb went on in my head,” he said. “I thought, I need to do this for all of them.”He then told Bloomberg that "he explained his thinking to his fellow jurors" and that seemed to drive the discussion. An interview with another juror, over at News.com, confirmed that Hogan's views focused the jury, with one juror admitting that they just started ignoring prior art, because that question was too time consuming. Seriously.
"It didn't dawn on us [that we agreed that Samsung had infringed] on the first day," Ilagan said. "We were debating heavily, especially about the patents on bounce-back and pinch-to-zoom. Apple said they owned patents, but we were debating about the prior art [about similar technology that Samsung said existed before the iPhone debuted]. [Velvin] Hogan was jury foreman. He had experience. He owned patents himself...so he took us through his experience. After that it was easier. After we debated that first patent -- what was prior art --because we had a hard time believing there was no prior art."Yeah. Read that sucker again. The jury instructions are again clear that the jury needs to consider the prior art, but according to this juror, Manuel Ilagan, after foreman Hogan talked about his own experience with patents, they decided that prior art was "bogging us down" and they might as well "skip" it.
"In fact we skipped that one," Ilagan continued, "so we could go on faster. It was bogging us down."
In the long run, the jury verdict probably won't matter much, because this case would have been appealed no matter what. But these kinds of stories certainly give Samsung plenty of fodder to ask the judge to toss out the jury verdict already. It also raises questions, yet again, about why we allow juries on patent trials. This has been a big problem for a long time and the results here only serve to emphasize that fact.
by Mike Masnick
Fri, Aug 24th 2012 9:01am
from the which-is-real,-which-is-o'brien? dept
I'm firmly of the belief that the whole legal fight between the two companies is silly, and that they should just compete out in the market, but you have to admit that the resemblance here is a bit uncanny.
by Mike Masnick
Mon, Aug 20th 2012 11:38am
from the important-question dept
He then takes the lessons of that book and applies it to the Apple/Samsung fight, noting that even if we assume they were imitating each other, that seems to have only encouraged further innovation, not less:
It's the same story we've been explaining for years. History and tons of studies have shown over and over and over again that competition drives innovation, because innovation is an ongoing process. Thus, when others can copy you, that actually accelerates innovation by giving the original incentives to stay ahead in the marketplace, and develop the next great thing. Research has also shown that it's not as easy as you think to "just copy" because you only see the superficial aspects to copy, rather than having the deeper understanding of what works and what doesn't that a market leader often gains.
If you go back to the mid-1990s, there was their famous "look and feel" lawsuit against Microsoft. Apple's case there was eerily similar to the one they're running today: "we innovated in creating the graphical user interface; Microsoft copied us; if our competitors simply copy us, it's impossible for us to keep innovating." Apple ended up losing the case.
But it's what happened next that's really fascinating.
Apple didn't stop innovating at all. Instead: they came out with the iMac. Then OS X ("Redmond, start your photocopiers"). Then the iPod. Then the iPhone. And now, most recently, the iPad. Given the underlying reason that Apple has been bringing these cases to court was to enable them to continue to innovate, it's hard not to ask: if copying stops innovation, why didn't Apple stop innovating last time they were copied? Being copied didn't stop or slow their ability to innovate at all. If anything, it only seemed to accelerate it. Apple wasn't able to rest on its laurels; to return to profitability, and to take the mantle they hold today of one of the technology industry's largest companies, they had to innovate as fast as they could.
In fact, when you understand that, you realize that patents can actually slow down innovation by letting a company rest on its laurels, and not have to continue to rapidly innovate. Other companies can't build on what they did first, and so they don't have the same incentives to continue to advance the market forward. And the Apple/Samsung fight in the market appears to support that.
If Apple ends up winning this case against Samsung — and either stops Samsung from releasing their phones and tablets to the market, or charges them a hefty license fee to do so — does anyone really believe that the market will suddenly become more innovative, or that devices will suddenly become more affordable? Similarly, if Samsung wins, do you really believe that Apple will suddenly slow its aggressive development of the iPhone and iPad? It's certainly not what happened last time they lost one of these cases.Exactly.
Now, if you're with me so far, then I don't think it's a leap to suggest that having these companies duke it out in court over "who might have copied who" is counterproductive. All these lawsuits flying around suggest that everyone is already copying each other, anyway. A better solution? Let's have these companies solely focused on duking it out in the marketplace — where consumers, not courtrooms, make the decisions about innovation. In such a world, the best defense against copying isn't lawsuits, but rather, to innovate at such a rate that your competition can't copy you fast enough. That, to me, sounds like an ideal situation not just for consumers — but for the real innovators, too.
by Mike Masnick
Thu, Aug 16th 2012 12:15pm
from the benchslap dept
"I am not going to be running around trying to get 75 pages of briefing for people who are not going to be testifying," U.S. District Judge Lucy Koh told Apple's lawyer Bill Lee.She went further too, warning of possible sanctions:
"I mean come on. 75 pages! 75 pages! You want me to do an order on 75 pages, (and) unless you're smoking crack, you know these witnesses aren't going to be called when you have less than four hours," Koh said.
"If it turns out I went through 75 pages for people who are not going to be called, I am going to think of a proper tax for that," Koh warned.As with many of these big company vs. big company patent disputes, it seems that so much of the focus is just wearing each other down with paperwork. At least in this case, the judge isn't going to allow it.
by Mike Masnick
Mon, Aug 6th 2012 7:04am
from the sounds-great dept
As you may (hopefully?) know, some of the patents in the fight are "design patents" rather than utility patents. When people talk about patents, they usually are referring to utility patents. Design patents are, in many ways, more similar to trademarks than to utility patents. But it creates odd situations where Apple gets to claim "ownership" of the concept of a rectangular device with rounded corners. It's also important to remember that design patents can't be for functional features, but only for design/appearance. That means that Apple has to insist that the basic design of the iPhone and iPad aren't functional at all.
As Matt Schruers highlights, that means that Apple is left in the awkward position of insisting that these basic concepts that are sort of obvious design choices to make such devices functional both aren't functional at all and that there are perfectly reasonable alternatives. For example, Apple's lawyers have suggested some "alternatives" in how Samsung could have designed its devices:
“front surfaces that are not rectangular, not flat, and without rounded corners; display screens that are more square than rectangular or not rectangular at all, display screens that are not centered on the front surface of the phone...”So what would that mean? Schruers explains:
“overall shapes that are not rectangular with four flat sides or that do not have four rounded corners; front surfaces that are not completely flat or clear... and profiles that are not thin”.
Of course. Surely consumers would happily hold a large, thick, bumpy, sharp-edged hexagonal thing up to their head. They’ll no doubt appreciate the different “ornamental” approach while reading through their opaque screen. No functional drawbacks there.Oh yeah, Schruers also includes this bit of prior art to emphasize his point:
Does that even sound like an object you would willingly put in your pants? Having a device that is not an unwieldy weapon-like object is a functional feature, not an ornamental design choice. One is not going out on a limb in concluding that if the object design increases your likelihood of getting strip-searched at the airport, those are functional drawbacks, and foreclosing functional features is not the purpose of design protection.
by Mike Masnick
Wed, Aug 1st 2012 5:05am
from the oh-come-on dept
by Mike Masnick
Wed, Jul 18th 2012 2:24pm
from the wow dept
The judge apparently told Apple to put a notice on its own website and in UK newspapers telling people that Samsung's Galaxy Tab -- which Apple is clearly afraid of -- isn't a copy. As you might imagine, Apple is not happy about this -- though it might as well include the stuff about Samsung's lack of coolness, if it must discuss things. Either way, Apple is protesting. According to the Bloomberg report linked above:
The notice should outline the July 9 London court decision that Samsung’s Galaxy tablets don’t infringe Apple’s registered designs, Judge Colin Birss said. It should be posted on Apple’s U.K. website for six months and published in several newspapers and magazines to correct the damaging impression the South Korea-based company was copying Apple’s product, Birss said.While I agree that Apple's lawsuit was a bad idea in the first place, and that the company should just compete in the marketplace, I'm at a loss as to the "damaging impression" that this lawsuit would have for Samsung. As the judge himself noted, the iPad is seen as being really cool. And the Samsung tablet... is not. So, why would it damage Samsung's reputation to have Apple claiming that the devices were too much alike? If anything, it seems like it should help Samsung by advertising which tablet Apple thinks is most like an iPad.
The order means Apple will have to publish “an advertisement” for Samsung, and is prejudicial to the company, Richard Hacon, a lawyer representing Cupertino, California-based Apple, told the court. “No company likes to refer to a rival on its website.”