lawsuit – Tech.pinions

Apple vs. Samsung: What Doesn’t Compute

I’m not a lawyer, but I am an analyst who unfortunately has participated in some of the largest corporate legal battles, has two immediate family members who are IP lawyers, and has had to decide on industrial design for consumer electronics. None of this qualifies me to give legal advice, but I am able to spot some very interesting things in technology lawsuits. The Apple-Samsung lawsuit was no different, as it was full of opportunity and oddities, and I wanted to share just a few observations.

The first thing I want to be clear on is that it is apparent to me that based upon the evidence and common sense, I believe Samsung infringed on at least few of Apple’s patents. Just looking at the Samsung phones before and after and hearing about the need to be like Apple was enough for anyone would to arrive at that conclusion that some phones were made to look like Apple’s. What I am not saying here is that I agree with everything that the jury came back with either; I don’t. I am not a lawyer and I did not see every shred of evidence that the jurors saw.

With that off my chest, let’s dive into some of these things that I found unique or odd about the trial.

I’ve Seen That “Aligned Grid” Before

Two of the patents under scrutiny dealt with the way iOS icons are set in a grid with a lower bar situated at the bottom for apps. Specifically, these were patents USD604,305 and US 3,470,983. It was funny, the first thing I thought of was my Windows desktop where I have icons aligned in a gird with my most used icons pinned to my taskbar. I remember old versions of Windows where it would “Align to Grid”, too. So really, what is so unique or special about this patent? Is it the fact that I am using it on a PC and the patent is on a phone? I find this one odd.

I’ve Seen That “Pinch and Zoom” Before

I remember getting an early preview of Microsoft’s original Surface table, now called PixelSense. It could recognize over 50 simultaneous touch points as it was designed for more than one person and entire hands. One of Surface’s special features was to pinch and zoom in on photographs…. almost exactly like the iPhone. Apple’s two finger pinch and zoom is covered under US 7,844,915. I am certain that Microsoft and Apple are dealing with this in one way or another behind closed doors, and I speculate that based upon Microsoft Research budget and amount of years they had been working on Surface, they have the upper hand. Remember, Apple was not the juggernaut it is today with more cash and market cap than anyone, therefore putting Microsoft in a better position to patent pinch and zoom.

I’ve Seen Those Curves Before

One of the other key patents Apple was fighting in court was related to the rounded corners. Apple had two design patents related to the corners. The two patents, USD504,889 and USD593,087 were both patents related to many physical elements combined, including rounded corners. Those curves are specifically 90 degree curves related to the same curvature in Apple’s legacy icons which date back over 20 years. I ask, does it make sense that someone can patent a curve? It does to the USPO, but in other designs like cars, you see related curves all the time, yes? I mean, really, do curves seem like something that is patentable? On the top is the Compaq T1100 sold in 2003 and on the bottom is Apple’s patent filed in 2004.

compaq tc1100 tablet — Compaq TC1100 (2003)

Would You Confuse an Apple and Samsung Phone?

One very prominent scene inside the courtroom was when Apple icon designer Susan Kare testified even she confused the Galaxy for the iPhone. I’ll give Mrs. Kare the benefit of the doubt, as maybe she was just looking at the icons, but I doubt anyone else on earth would confuse the two phones. Every Galaxy S has a “SAMSUNG” and “AT&T” logo on the front of the phone and you certainly wouldn’t make the mistake of buying the wrong phone as the carton is clearly labeled Samsung. So if consumers wouldn’t confuse the two and wouldn’t mistakenly buy the wrong phone, how damaging is the similarity, really? Have you ever heard even a rumor of someone mistakenly buying a Samsung phone and thought it was an iPhone? If you have, please let me know in the comments below.

So What?

So I have brought up some possible inconsistencies or “horse sense” that may go against what the jury said and potentially even against patent law, so what? I think if we cannot look at ourselves in the mirror, be honest with each other on what violates a patent or if there even is a patent to violate, the U.S. patent system itself will lose credibility and is doomed. If reasonable intelligent people can’t even make sense of it, then what does that say about the problems we will face in a few years as companies become even more litigious as they file patent after patent just so they don’t get burned down the road? I hope more good than harm comes out of this patent spat. The big picture is really about continued innovation. We should all pay heed to what Ben said so well yesterday, “The key to the future will be to seek out new opportunities with fresh thinking and innovative ideas. To those that think innovation is dead I pose this question: Have all the problems of the present and the future been solved? Until the answer is yes, there will always be room for innovation.” Let’s not let the patent system stifle that innovation and let’s use some common sense as we approach it.

Why Google Hates Patents

In a rather testy blog yesterday, Google’s Chief Legal Council David Drummond lamented the fact that Android is under attack from competitors who are using a patent war to thwart Androids growth.

Mr. Drummond calls these patents that attack Android “bogus” and suggests that Apple, Microsoft, Oracle and others are ganging up to keep Android from being competitive and impacting its growth.

He especially calls out Apple and Microsoft’s purchase of Nortel’s patents and suggests that while normally Apple and Microsoft are at “each others throats” he believes that something sinister is going on. But Mr. Drummond does not know Apple and Microsoft’s history. In 1997, Apple and Microsoft entered a major cross licensing deal that spans a great deal of technologies, especially user interface issues. And over the years, behind the scenes, they’ve expanded their cross licensing deals with an eye on making sure that they kept up with the changing technologies that were behind their original deal. Although the Nortel patents were a high profile case, many of these patents actually were very much in line with their quest to keep their original cross licensing deals up-to-date.

Ironically, Microsoft actually asked Google to bid with them and they refused.

I also found it interesting that Mr. Drummond was pleased that federal regulators are “ looking into” whether Microsoft and Apple acquired the Nortel patents for anti-competitive means.” Given what I stated above, Apple and Microsoft will just show them the history of their cross licensing deals and this point will be mute. By the way, if I were Google I would keep as far away from prodding federal regulators on any issue given the fact that they are also under major federal anti-trust scrutiny

Also if Google is so opposed to patents, then why did they shell out $100 million for patents from IBM? This seems contradictory to their view that patents are bogus. An interesting aside here is that none of these patents from IBM will help them ward off Apple. These IBM patents are mostly related to semiconductors and servers and Apple already has license to most of these from their original IBM/PPC partnership created during the mid 1990’s.

Now, I understand that Drummond’s is just doing his job. In fact, Google’s management has a fiduciary responsibility to defend Android just as Steve Jobs and team have a similar responsibility for defending their patents. However, I believe there is really more of an ideological issue in play and represents Google’s more Open Source approach to life that feels that all technology should be free for use by all. Versus Apple’s strong view that their IP is the result of serious investment and hard work and needs to be protected through the legal patent process to, as Steve Jobs has said, “keep people from stealing” their creative innovations.

I like what Daring Fireball’s John Gruber asks in his post on the subject:

“How is Google’s argument here different than simply demanding that Apple, Microsoft, Oracle, et al should simply sit back and let Google do whatever it wants with Android, regardless of the patents they hold?”

The other thing in play is that Google has always touted the fact that Android is free. But it is clear that if Oracle wins their suit against Google and Android’s use of Java , Oracle plans to charge each Android vendor $15.00 per license. And Microsoft has already gotten HTC to pony up at least $5.00 per HTC device that uses Android to cover Microsoft’s patents used in Android. In Apple’s case, if they win, they won’t even consider licensing that piece of the technology to anyone. So that part of Android that would be in violation of any of Apple’s patents would mean that Google and their licensee’s would have to find a work around and that could be costly to Google and every Android licensee.

And this takes a big bite out of Google’s argument that Android is free and would make any future licensee’s think hard about using Android if there are potentially sliding costs involved to cover any other patent claims that could pop up over time. No wonder they are bashing patents. They fear their impact on what has to be one of their big cash cows where Android is given out freely and they get the add revenues tied to it.

We have suggested to our clients that license Android from Google to begin factoring in at least $20.00 for a possible upcoming Android license fee in any future products. And we have warned them that if Oracle wins, they could try and collect that $15.00 for any Android device already shipped. This is obviously still a legal issue and we don’t know for sure how it will play out. But it would be foolish for any Android licensee not to be prepared for what they have to view as a worst case scenario if the legal battle goes in favor of Oracle and others challenging Androids use of their patents.

And don’t think that Apple, Oracle or Microsoft will back down on this issue. They know the stakes are high and will keep pressure on Google through the legal channels until it is resolved one way or another. It will be great theater watching these tech giants go after each other in the coming months.

The Real Issue Behind the Android Lawsuits

In case you haven’t been following the lawsuit news closely, three major companies have been suing companies using Google’s Android operating system. The three companies behind the bulk of these suits are Apple, Microsoft and Oracle. The latest in the saga came down Friday when the International Trade Community ruled in Apple’s favor in its suit against HTC and several of their Android devices. The ITC ruled that HTC had indeed infringed on two patents that were specifically granted to Apple.

For a highly detailed analysis of the ITC’s decision I will point you to Florian Mueller’s Foss Patents blog and his post – ITC judge finds HTC in infringement of two Apple patents.

Also take a look at Fortune’s tech writer Phillip Elmer Dewitt’s story where he points out a tangible example of one of the patents use cases: Apple vs. Google: Inside an Android patent violation.

I’ve read at least a dozen articles on this subject over the weekend and many great articles have covered this from every angle imaginable. There is however one point i’d like to make that I feel is at the heart of the issue.

I have heard from a number of very sharp analysts and experts in our circles that these lawsuits against those who ship Android products are extremely serious. Everyone generally agrees that even though the lawsuits themselves are targeting those who ship Android devices, it is really Android which is the issue. Everyone also generally agrees that given the nature of the lawsuits from the current big three you would have to conclude that Android certainly does step on its fair share of patent infringements. In fact its hard to create a product in today’s times that doesn’t infringe on someones patents. This is why having a robust patent portfolio is key to so many companies since it allows them either patent protection or cross license opportunities when the inevitable patent infringement comes.

That being said what I feel the real issue behind the lawsuits is that Android is free. It’s obviously one thing to infringe on a companies inventions or innovations and then sell them but its another entirely to infringe on someones inventions and innovations and give them away for free. It sends the message that those innovations aren’t even worth enough to ask someone to pay for them.

Whether or not this was Google’s intention with Android will most likely never be known. Whatever the case my opinion is that the de-valuing of others inventions or innovations is at the heart of the intense lawsuits we are seeing come down with Android as the target.

This is not to say that these lawsuits would not have occurred anyway only that there is an intensity behind them that I feel is being fueled at least in part by the liberally giving freely of other people’s IP.