Verdict

by John Kirk   |   August 24th, 2012

Apple just gave the rest of the industry 1 billion, 49 million, 353 thousand, 540 reasons why they should not drift too close to Apple’s patents or designs.

John Kirk

John R. Kirk is a recovering attorney. He has also worked as a financial advisor and a business coach. His love affair with computing started with his purchase of the original Mac in 1985. His primary interest is the field of personal computing (which includes phones, tablets, notebooks and desktops) and his primary focus is on long-term business strategies: What makes a company unique; How do those unique qualities aid or inhibit the success of the company; and why don’t (or can’t) other companies adopt the successful attributes of their competitors?
  • http://www.facebook.com/profile.php?id=1131685622 Peter Buckton

    So, does Samsung pull an Armstrong here and declare that a man has to decide at some point to stop fighting it… ?

    • Grwisher

      Frist, they would have to be man enough to do it.

  • Matang_Lawin

    “Apple just gave the rest of the industry 1 billion, 49 million, 353
    thousand, 540 reasons why they should not drift too close to Apple’s
    patents or designs.” – John Kirk

    Well, basically this can get to 3 Billion, 128 million 059 thousand reasons to stay out of Apples patents or designs should Judge Lucy Koh triple the damage due to “willful infringement”.

    Personally, though I applaud the verdict of the jury to award such monstrous sum to punish second-rate copy cats who try to steal away years and years of handwork and innovation.

    “Patents and trade dress don’t much matter. You may have a legal right
    to enforce your patents, but as a practical matter, they are virtually
    unenforceable.”- John Kirk on previous article http://techpinions.com/musings-on-apple-v-samsung/8772. I bet you feel kinda different now huh… :D

    • FalKirk

      ” I bet you feel kinda different now huh… :D”-Matang_Lawin

      Your comeuppance is well met, Matang_Lawin. However, I really don’t feel any differently. As an attorney, I know in my head that Apple has to do everything in their power to enforce their intellectual property. But as a tech observer, my heart wishes that litigation like this did not have to be so.

      Apple was trying to send a message to the tech industry. Was the message received? A billion dollars court award sounds like a lot. But Apple makes almost a billion dollars in profit every 10 days. My wistful words of advice to CEO Tim Cook still stand: Out-innovate the market. Apple will always be more successful in the open market than in open court.

      • capnbob67

        It may be small beer for Apple but if you look at the industry, only Samsung, MS and Google could afford such a defeat. Most of the other players would be materially hurt by this kind of verdict. Many would rather not face the costs of litigation never mind face a settlement of this magnitude.
        MS are safe since they’ve gone so far off the reservation that it’ll be years before they come back (and they’ve done a lot to differentiate WP8). Google might want to worry now though they have been less willful”

  • Matang_Lawin

    Hi John, I agree with you on this one.

    I would like to however discuss your previous discourse below on a previous article you have written—-

    “Patents and trade dress don’t much matter. You may have a legal right
    to enforce your patents, but as a practical matter, they are virtually
    unenforceable.”- John Kirk, on

    Musings on Apple v. Samsung.

  • Grwisher

    I find my self in a bit of a predicament in that I have not, up until this point, criticized your work and therefore do this reluctantly. When I read your original post, I was enthusiastically following along nodding my head up and down in agreement, when toward the end my enthusiasm imploded.

    There were two issues and because the second one was based on the future, I decided not to comment at that time.

    First Issue: You seem to do a 180 degree swing, which is common for lawyers but not something common for you. (BTW – I am a recovering supplier of time and billing software for lawyers).

    You first said:

    “Even if Apple loses this case, they’ve made the point that if your product drifts too close to theirs, they can tie you up in court for years and years. And if Apple wins the case, well, they’ve turned that warning shot I mentioned, above, into a 2.5 billion dollar fusillade.”

    You then said:

    “I see what Apple is trying to accomplish here but, – and this is going to sound strange coming form an attorney – personally, I wish they hadn’t tried to use the courts to solve their patent problems. Seems like an awful lot of trouble for very little return. Feel free to disagree. I’m quite sure that Apple does.”

    I chalked this up to the normal CYA tactics used by many, but I find unproductive. It is like most financial analysts who skillfully predict that the market will go up, down or stay the same. While it is of some use to know the various alternatives, it is far more valuable to have an opinion (the name of this web site is tech.pinions) as to the outcome of a situation.

    Second Issue: The real implosion to my enthusiasm came when I read this:

    “If, in some fantasy world, Apple CEO, Tim Cook, came to me for advice on this matter, I’d tell him this: “Patents and trade dress don’t much matter. You may have a legal right to enforce your patents, but as a practical matter, they are virtually unenforceable.”

    First I must say, as an AAPL stockholder, I am eternally grateful that you are not Tim Cook’s attorney, that you couldn’t have been more wrong in your advice and I am puzzled, not only with your view of this whole patent situation, but with others as well.

    As I said, I supplied software to the legal community (for over 30 years). My wife and I were lucky to sell the intellectual property in 2000 and did well. Our luck came from working 12+ hours a day every day and I mean every day. My problem with your advice to Tim Cook is that if I had thought that the legal system had such little belief in its ability to enforce the laws, I don’t know if I would have put up such a strong fight in my struggle to obtain some measure of success.

    Let me go out on a real limb here and say I think I know how Tim Cook would have responded to your advice. I think he would have pointed out that the employees that were recruited to work on the iPhone were asked to sacrifice weekends and vacations for years in order to bring such a revolutionary device to market. I think he would point out that the families therefore made sacrifices as well. There is no question that Apple could financially afford to take your advice but I don’t think Tim Cook could have used it to explain his actions to those employees who sacrificed so much to make the iPhone a success. IMHO, he had to fight this one and I am so glad he did.

    The main reason I am puzzled by those who say patents shouldn’t exist at all or, in your case, don’t matter. If that if true, this country should just shut its doors and go quietly into the night. The main thing this country has going for it is its creativity and innovation. Every Apple product I have ever bought proudly states “Designed by Apple in California”.

    This country has already lost a large portion of our manufacturing jobs to overseas companies. It seems like there are many out there want to give them the rest of what we have going for us as well.

    • benbajarin

      Thanks for the excellent and extremely respectful disagreement :) I will not speak for John but I know for myself, I appreciate healthy disagreement on our site. I think it is good for the thought and more importantly a key part of the idea / opinion refining process.

      • Grwisher

        Thanks for your comment. I was worried that my passion for Apple had gotten me in trouble – Again.

    • FalKirk

      Grwisher, you, and many others, have made several excellent points. I, on the other hand, have been unable to adequately defend my position. One day I may return to this subject with a deeper understanding and a better way of expressing my meaning. However, until that day arrives, if ever, I’ll withdrawal my comment and concede that I was wrong.

      Thank you for holding my intellectual “feet to the fire”. I cannot say that I like being wrong but I would rather be wrong and learn than only think I was right and remain ignorant.

      • Grwisher

        FalKirk, you have made my day, not for expressing your reservations about your original post, but for the gracious way you let me off the hook. You were too kind.

        My problem with this whole patent thing is that, because of my background and being a shareholder, I passionately want it to work and in many ways it is not working. I want Apple to innovate and not have competitors blatantly copy their work. There is no question in my mind that Samsung went too far with their copying. To quote Dan Frakes in a recent comment on Daring Fireball: “When the iPhone debuted, it was widely criticized for having no buttons/keys. Now people think the iPhone’s design is “obvious.” That pretty much sums it up.

        When I read your original post I was thrilled with the content until you expressed the opinion that Apple should not have taken this road. I didn’t want to hear that for reasons stated earlier. I had followed the Oracle/Google trial and was devastated when the verdict was so different from what web sites like Foss Patents predicted. When I read your advice, I was very afraid that the Apple/Samsung verdict would be a repeat of Oracle/Google one.

        I can say, and did say, that you were wrong. But, I did not have the guts to say it before the verdict. Let me be so bold as to try to defend your position. The reason is that you could have easily have been right because a jury trial is a crapshoot – nobody knows what the lawyers, jury, judge, etc. is going to do to especially in a highly technical trial. You may still be right because there is yet a long road ahead before a final resolution is reached. You actually expressed a personal view I have about lawsuits and that is: “There are two places I don’t want to be – a court room or a casket.” Just because you turned out to be wrong in this particular case, your advice in many, many other cases, will turn out to be correct. I am just glad it wasn’t this one – SO FAR!

        • FalKirk

          Thank you for your gracious words. You have no idea how much I appreciate your feedback and your support.