Archive for the ‘patent litigation’ tag
Apple and Steve Jobs’ strategy of obtaining intellectual property protection for every and anything possible may be about to pay big dividends in the “patent trial of the century” that is currently taking place in a federal courtroom in San Jose, California. Apple is seeking over $2 billion in damages (which can be trebled if Samsung’s infringement is found to have been willful) and an injunction barring the sale of certain Samsung smartphones and computer tablets in the United States.
Most patent trials can be tedious and boring affairs involving complex technologies and the construction of difficult to understand utility patents. However, by protecting its well-known products using all types of intellectual property, including design patents, Apple has been able to turn what could have been a month-long patent litigation trial involving a number of highly technical patents into what it hopes is a simple referendum on whether Samsung copied the appearance and graphic user interface of the iPhone and iPad. Considering the similarity of Apple and Samsung products, Samsung may have a difficult time convincing the jury that there is more than meets the eye and that Samsung should not be held liable for infringement.
There are two general categories of patents that can be obtained from the United States Patent and Trademark Office, utility patents and design patents. Utility patents are the most common type of patents and generally involve the way an invention is used and works and may be granted to anyone who invents a new and useful method, process, machine, device, or any new and useful improvement of the same. In this case, Apple is asserting that Samsung infringed three Apple technical utility patents involving features of a multi-touch user interface.
While design patents are litigated far less frequently than utility patents, and many companies do not even seek design patent protection, infringement of a design patent may be far easier for a jury to understand. A design patent protects only the ornamental appearance of an invention, not its utilitarian features. The general test for infringement for a design patent is relatively simple: Does the alleged infringer’s product design appear substantially the same as the patentee’s design? While a patentee can buttress its evidence of the similarity of designs through the testimony, for example, of industry observers, consumers, and business partners, jurors can use their own eyes for a side by side comparison and decide for themselves if the products look substantially the same. It certainly does not depend on understanding highly complex technical matters.
In addition to the utility patent infringement claims, Apple has accused Samsung of infringing a tablet design patent and graphical user interface patent for the iPhone. Thus, instead of having to convince the jury through highly technical evidence that Samsung infringed a number of utility patents, Apple can argue to the jury that the products are so physically similar that Samsung must have copied the designs from Apple and that the jury can make this determination with its own eyes.
In comparison to the relatively easy-to-understand Apple design patents, Samsung’s counterclaims against Apple involve Samsung’s patents covering the inner workings of cellphones. Such claims are technologically complex, and two of Samsung’s patents are “standards-essential patents,” which protect inventions that are incorporated into broader technology that an entire industry has agreed to use. Samsung alleges that it offered to license two standard-essential patents to Apple on fair terms, as legally required but that Apple refused and used the technology for its iPhones anyway.
While the law in this area is unclear, a recent decision by an influential jurist suggested that remedies for claims of infringement of a standard essential patent are limited.
The Apple-Samsung trial is expected to take a month. Both sides are expected to offer evidence supporting their claims and defenses from a variety of sources. Much of the evidence will be highly technical, and despite the best efforts of the attorneys on both sides to make the technical details comprehensible to a jury, the outcome may come down to simply whether the jury believes with its own eyes that Samsung copied the appearance of the iPhone and iPad.
Peter Toren is an intellectual property litigator and computer crimes expert with Weisbrod Matteis & Copley in Washington, DC.
[Image credits: Apple, Samsung]
Patent trolls cost the U.S. economy almost $30 billion each year. But now Congress has an opportunity to save that money and allow innovators to sleep a little deeper at night.
The SHIELD act – Saving High-Tech Innovators from Egregious Legal Disputes, there must be a silly names contest for American legislation — would force patent trolls who lose frivolous cases to pay their defendants’ legal costs.
From the act preamble:
… to provide for the recovery of computer hardware and soft-ware patent litigation costs in cases where the court finds the claimant did not have a reasonable likelihood of succeeding, and for other purposes.
Essentially, SHIELD would increase the riskiness of the patent trolling business model. With the potential for vastly higher costs, deciding to sue becomes a harder decision … and suing companies using ridiculous patents becomes less attractive.
Representative Peter DeFazio from Oregon, who sponsored the bill with Representative Jason Chaffetz from Utah, certainly gets the issues:
“Patent trolls don’t create new technology and they don’t create American jobs,” DeFazio said in a statement. “They pad their pockets by buying patents on products they didn’t create and then suing the innovators who did the hard work and created the product.”
The Electronic Frontier Foundation agrees, with staff attorney Julie Samuels writing: “Finally, a moment of sanity.”
The courts system has recently shown signs of being less eager to be the patent trolls heavy, but in spite of the America Invents act of 2011, passing substantive patent reform has been a tough slog. (Although more patent offices and patent review officers is one step.)
This bill is music to the ears of executives like Build.com CEO Chris Friedland, who I interviewed a month ago. Build.com was fighting patent lawsuits from as many as five trolls. Friedland was not impressed — and fought back, forming patent defense pools to spread the legal costs.
“Frankly, the absurdness of some of this stuff is just ridiculous,” Friedland said at the time. “Are you going to patent wiping your ass?”
Perhaps, with SHIELD, there will be less point to … since the courts will no longer be a cash machine for trolls.
Image credit: Songquan Deng/ShutterStock
Microsoft is tired of Google’s campaign to paint it as a patent troll, and it has come up with some fairly simple suggestions to stop the bad blood: quit the negative publicity, and agree to our terms (or else).
In a blog post this morning, simply titled “A Solid Foundation for Patent Peace,” Microsoft’s general counsel Brad Smith and intellectual property head Horacio Gutierrez laid out Microsoft’s latest position on its ongoing patent battles with Google and its new subsidiary Motorola Mobility. But instead of being a genuinely useful way to come to terms with Google, the piece ends up being yet another way for Microsoft to paint itself as an aggrieved victim.
The pair say Google is “deflecting attention” from settling with Microsoft and licensing its patents — take for example Google’s recent complaints to the EU against Microsoft and Nokia — and that there’s no sign of Google’s “diversionary tactics” stopping anytime soon.
“Microsoft has always been, and remains open to, a settlement of our patent litigation with Motorola,” Smith and Gutierrez wrote. “As we have said before, we are seeking solely the same level of reasonable compensation for our patented intellectual property that numerous other Android distributors – both large and small – have already agreed to recognize in our negotiations with them. And we stand ready to pay reasonable compensation for Motorola’s patented intellectual property as well.”
Smith and Gutierrez say that Google needs to only do two things to reach an agreement: Settle patent litigation for all of the patents Microsoft claims is being infringed (instead of choosing a select few patents), and pay the same standard licensing rate that other companies are under “fair, reasonable, and non-discriminatory terms” (FRAND).
That sounds reasonable enough, but it’s no different than what Microsoft has been asking Google to do all along, so there’s no reason to think this saccharine blog post is going to change Google’s mind. Motorola Mobility offered up the following comment to All Things Digital:
Microsoft wants to undercut Motorola’s industry-leading patent portfolio, licensed by more than 50 other companies on fair and reasonable terms, while seeking inflated royalties tied to standards that Microsoft alone controls. Motorola is always open to negotiations that avoid wasteful and abusive patent claims.
Microsoft’s “solid foundation for patent peace” may have actually made the situation worse with Google (though Microsoft probably snagged a bit of sympathy for playing the victim so well).
In an interview with Wired, Samsung’s Chief Product Officer Kevin Packingham alludes to Apple’s aggressive pursuit of patent litigation and finds it “unreasonable that we?re fighting over rectangles, that that?s being considered as an infringement.”
Just days after Kodak lost a landmark suit against Apple and Rim, Lex Machina, a machine learning technology that took Stanford researchers six years to develop, will bring Big Data to one of the most complex and convoluted areas of the law.
In Silicon Valley, patent litigation has become big business. And yet, this is the first time that lawyers can access data drawn from previous cases, to make informed decisions about how to win.
“Lex Machina crawls hundreds of thousands of legal documents to predict outcomes for intellectual property cases,” said Owen Byrd, a spokesperson for the company, in an interview with VentureBeat.
Lex Machina, a technology that uses data to manage patent and intellectual property suits for law firms and companies, raised $2 million in funding in a first round led by Portola Valley’s X/Seed Capital.
Byrd referenced the recent Kodak case to explain how clients are using the technology. The company has data from 130,000 court cases and crawls the Web to extract documents from court records. Byrd told me that if Kodak’s lawyers had used Lex Machina, the technology would have unearthed similar cases, and likely found that the digital imaging company would not have won its suit. Alternatively, an analysis of the data may find that companies have a better shot of winning the case in a different state, or with an alternative district judge.
Byrd told me that in future, the technology will expand to other areas of federal law, including antitrust cases, bankruptcy and tax law. The company will also use the funding to expand its team.
Other participants in this round include Jeff Hammerbacher, founder of Cloudera, and Naval Ravikant of AngelList.
Click here to read a round-up of Silicon Valley legal technology startups.
Filed under: VentureBeat
Funding news was slow like molasses today. And so to continue this week’s theme of presenting funding news with a dusting of sugar, here is today’s kiddie cup of investment. We’ve got Fab McFlurry and a pint of Phish Food for your enjoyment.
JustFab applies McDonalds wisdom to fashion sector
Fashion startup JustFab nabbed $76 million in a second round of funding today for its unique combination of fashion and commerce, described as “fast fashion”. It’s similar to fast food, but less greasy.
The company creates new and updated fashions at a furious rate, curated, selected, and designed by fashion celebrities and stylists. Women sign up at a monthly $39.95 to receive new items regularly based on their preferences. JustFab acquires 500,000 new users each month and forecasts $100 million in revenue this year. The round was led by Rho Ventures. Read more on VentureBeat.
Gone Phishin’: PhishMe hooks $2M
Email security company PhishMe caught $2.5 million in its first round of funding. It makes software that trains employees how to protect themselves from targeted email threats and security issues. The round was led by Paladin Capital Group and will be used to scale (ha) sales, services, and engineering. It is based in Chantilly, VA.
Lex Machina raises $2M because lawyers want to play with Big Data too
Lex Machina closed $2 million in funding led by x/Seed Capital. The company provides intellectual property litigation data and predictive analytics to companies, law firms, consultants, and public interest users. With the recent proliferation of patent litigation, Lex Machina applies big data to the legal sector to help build cases and manage lawsuits. It’s based in Palo Alto and grew out of a Stanford University Law School and Computer Science Department project called the IP Litigation Clearinghouse.
Filed under: deals
The United Nation’s International Telecommunication’s Union arm is calling smartphone makers and mobile industry bodies together to discuss snowballing patent litigation and expects to focus on standards-essential FRAND patents.
Once again, there’s word that Amazon is working on a smartphone, this time from Bloomberg. And given the success of the Kindle Fire so far, which has been the only Android tablet worth buying since its debut (the Nexus 7 now holds that title), it’s not surprising to think Amazon would want to get into the smartphone arena as well.
But I can’t imagine Amazon would simply spit out a smartphone without any further innovation.
Considering it’s already one of the best sources for smartphone deals on the web, I think it’s just a matter of time before Amazon starts reselling wireless data services on its own as well. Even without its own phone, reselling wireless service would make Amazon the one-stop shop for practically any mobile device. And if it’s prepaid, the service would be particularly enticing for tablet users, or anyone who doesn’t want to sign up for yet another cellular contract.
Offering prepaid cellular service wouldn’t be a huge stretch for Amazon. The company has offered its “WhisperNet” service since the very first Kindle, which uses Sprint’s EVDO network to offer anytime data connectivity to its e-readers.
Amazon has proven itself adept at being a step ahead of the competition with the Kindle, Kindle Fire, and its ubiquitous cloud computing services. Offering its own wireless service would definitely give it a leg up on practically all other mobile device manufacturers — even Apple — which still have to deal with traditional carriers.
According to the Bloomberg report, Amazon is said to be working with Foxconn (which also manufacturers the iPhone and iPad) on the phone. Just like the Kindle Fire, I’d expect Amazon to power the phone with a tweaked version of Android. The company has also been buying up wireless patents to protect itself from the wave of patent litigation sweeping the mobile market.
“My guess is that Amazon will indeed come out with a smart phone, but it will be much like Fire – tied to Amazon content and services, and may even include an e-wallet for purchasing from Amazon,” said Jack Gold, principal analyst at J. Gold Associates. “That is where they made their money, not in the sale of the device itself. So expect it to be aggressively priced (again, like the Fire model).”
“As for reselling wireless, this is a bit more iffy,” Gold added. “Amazon could certainly become an MVNO – there are lots of carriers that would work with them. But I don’t see any real reason for them to do so other than account control. There is not a lot of profit to be made as an MVNO (the carriers make most of the money). If I were Amazon, I’d just provide an unlocked phone and let the buyer pick a SIM for whatever carrier they want. Amazon will make plenty of money on the services, and they won’t have to guess which carrier to provide users that will offer the best service in their location.”
The last time we heard rumors of Amazon building a phone, I wasn’t too excited about the idea. After all, why would Amazon want to jump into the overcrowded Android phone market? But given just how well the Kindle Fire has done, as well as the clear need for a simple prepaid wireless service in the mobile world, an Amazon phone all of a sudden becomes a much more interesting prospect.
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Apple won a surprising patent today for a finger swipe motion that seems second nature to smartphone users. The company, which is embroiled in a number of patent lawsuits, is seemingly only adding fire to its arsenal.
The patent encompasses the detection of an object on the screen that controls the scrolling of a list on the phone. Yes, the swiping motion your finger uses to reveal more e-mails is now Apple’s. It also describes the experience of reaching the end of the list and seeing the “an area beyond the terminus,” or what looks to be the back of the screen. This was originally filed in 2008. Another patent details the “pinch and zoom” motion, as well as using your finger to move the image so you can see it in detail. As Cnet notes, it’s pretty impressive that such an intuitive motion is now a part of Apple’s patent portfolio. And undoubtedly we will see this used against others in patent litigation.
But it seems patent lawsuits are being more heavily scrutinized as the battle for IP heats up between companies such as Apple, Samsung, Motorola, and others. A case with the potential to become a pivotal moment for the Apple/Google patent relationship was recently thrown out by Judge Richard Posner. Judge Posner explained that neither side was able to prove that one smartphone was more financially deserving of damages than the other in a patent war that pitted the iPhone against the Android (who saw that coming). It seemed that Judge Posner came away from the trial with the opinion that the patent system is broken, but you can expect to see these two companies, and a slew of others continue to battle it out.
Apple also won a patent that could bring about new chargers for the iPhone. The system allows the iPhone, or potentially the iPad, to be charged via an “inductive charging dock.” This means the device only needs to sit on the charger, not be plugged in. But don’t think this will get rid of the built-in ports, however. You’ll still need to be able to connect to a computer for operating system updates and other functions.
via Patently Apple
Filed under: VentureBeat
Despite the fact that the Galaxy S III supply is rather low at the moment, Samsung’s mobile boss JK Shin predicts that Galaxy S III sales will exceed 10 million in July.
Neither the Samsung Galaxy S II nor the Galaxy Note were able to achieve such fast market penetration, but neither the Galaxy S II nor the Galaxy Note were the most pre-ordered Android phone in history.
But that doesn’t change the fact that most users are unable to purchase or pre-order the 32GB version of the device, according to Reuters. In fact, Sprint has had to push back the launch of the device because of low supply from Samsung.
“Due to overwhelming demand for the Galaxy S III worldwide, Samsung has informed us they will not be able to deliver enough inventory of Galaxy S III for Sprint to begin selling the device on June 21. We are working closely with Samsung on a delivery schedule to support our launch,” reads Sprint’s site.
It’ll be interesting to see the convergence between short supply from Samsung and a brand new device from Apple. The iPhone is Samsung’s greatest threat in the mobile realm, and the company smartly gave itself a three-month (or so) head start before the next iPhone is unveiled. But with short supply surely slowing the momentum of sales, Samsung may not get everything it could out of the Galaxy S III.
In either case, the GSIII will still sell just fine and surely break some new records for Samsung. Plus, Samsung went out of its way to avoid any patent litigation with Apple this time around.