German court stays third Apple patent suit, more may follow
Three German Apple lawsuits asserted against Samsung have been stayed in as many months, the most recent being a pinch-to-zoom utility model, and some expect more will follow as a result of the country's patent litigation system.
The Mannheim Regional Court on Friday stayed an Apple claim involving German Utility Model No. DE 21 2008 000 001 on "pinch-to-zoom" pending the resolution of a Federal Patent Court revocation proceeding, reports FOSS Patents' Florian Mueller.
This is the third suit that has been stayed since March when the Mannheim court came to similar conclusions in cases involving a photo gallery patent and a slide-to-unlock utility model.
Mueller notes that there will likely be more stayed cases in the coming months due to the way German courts handle patent litigation bifurcation, or the splitting of a suit into the two separate tracks of validity and infringement. It takes two to three times as long for the Munich-based Federal Patent Court to reach an initial decision on patent validity than it does to win a first-instance infringement ruling. Because the two tracks are not synced, plaintiffs have a window in which to enact injunctions that may not be based on strong or even legitimate patents.
"While the courts that adjudicate infringement cases don't perform a complete evaluation of an invalidity defense, they try to assess the likelihood of success on the merits of the parallel nullity action," Mueller explains. "If a regional court (first-instance court) believes that a patent is highly probable (80%+) to be invalidated, it stays the infringement case pending clarification of the validity of the patent (or at least until there is further news from the nullity action). Higher regional courts (appeals courts) order a stay even if the probability of invalidation is, in their assessment, only 50%."
Patents are presumed to be valid as they have supposedly passed through examination by entities like the European Patent Office or the U.S. Patent and Trademark Office. However, German utility model assertions, like Apple's slide-to-unlock suit, are less robust as they don't undergo substantive examination. It is therefore required that a registered model show a likelihood of surviving a revocation proceeding in order to get stayed.
Illustration from the stayed Apple pinch-to-zoom utility model claim.
Source: German Patent and Trademark Office (DPMA)
Apple's litigation strategy of throwing a slew of assertions against Samsung to see what sticks could likely cause many to be dismissed or stayed, but the time-consuming process may suss out a valuable set of strong patents.
"With non-standard-essential patents, it's hard to find patents that are broad enough to be (a) infringed and (b) hard to work around while still being defensible in a nullity or revocation action," Mueller said. "It's understandable that Apple takes its chances in hopes of identifying a winning team of powerful patents. This process takes time, but there is progress -- even if Samsung has so far been lucky in Germany, a market in which its market share is particularly high."
The Mannheim Regional Court on Friday stayed an Apple claim involving German Utility Model No. DE 21 2008 000 001 on "pinch-to-zoom" pending the resolution of a Federal Patent Court revocation proceeding, reports FOSS Patents' Florian Mueller.
This is the third suit that has been stayed since March when the Mannheim court came to similar conclusions in cases involving a photo gallery patent and a slide-to-unlock utility model.
Mueller notes that there will likely be more stayed cases in the coming months due to the way German courts handle patent litigation bifurcation, or the splitting of a suit into the two separate tracks of validity and infringement. It takes two to three times as long for the Munich-based Federal Patent Court to reach an initial decision on patent validity than it does to win a first-instance infringement ruling. Because the two tracks are not synced, plaintiffs have a window in which to enact injunctions that may not be based on strong or even legitimate patents.
"While the courts that adjudicate infringement cases don't perform a complete evaluation of an invalidity defense, they try to assess the likelihood of success on the merits of the parallel nullity action," Mueller explains. "If a regional court (first-instance court) believes that a patent is highly probable (80%+) to be invalidated, it stays the infringement case pending clarification of the validity of the patent (or at least until there is further news from the nullity action). Higher regional courts (appeals courts) order a stay even if the probability of invalidation is, in their assessment, only 50%."
Patents are presumed to be valid as they have supposedly passed through examination by entities like the European Patent Office or the U.S. Patent and Trademark Office. However, German utility model assertions, like Apple's slide-to-unlock suit, are less robust as they don't undergo substantive examination. It is therefore required that a registered model show a likelihood of surviving a revocation proceeding in order to get stayed.
Illustration from the stayed Apple pinch-to-zoom utility model claim.
Source: German Patent and Trademark Office (DPMA)
Apple's litigation strategy of throwing a slew of assertions against Samsung to see what sticks could likely cause many to be dismissed or stayed, but the time-consuming process may suss out a valuable set of strong patents.
"With non-standard-essential patents, it's hard to find patents that are broad enough to be (a) infringed and (b) hard to work around while still being defensible in a nullity or revocation action," Mueller said. "It's understandable that Apple takes its chances in hopes of identifying a winning team of powerful patents. This process takes time, but there is progress -- even if Samsung has so far been lucky in Germany, a market in which its market share is particularly high."
Comments
Quote:
Originally Posted by AppleInsider
Apple's litigation strategy of throwing a slew of assertions against Samsung to see what sticks could likely cause many to be dismissed or stayed, but the time-consuming process may suss out a valuable set of strong patents.
This sort of strategy strikes me as abuse of the legal process.
And yet you have had no issues with the hundreds of individuals and companies that have sued Apple in the past and present with b.s. claims (Old lady runs into the glass door and sues. Guy sues Apple,because his kid dropped his iphone. Proview sues Apple in an attempt to get a payout it doesn't deserve.) Abuse of the legal process you claim? You're a hypocrit, i claim.
You have no basis for any of this.
Just ignore I am a Zither Zather Zuzz he is a troll who never says anything good about Apple
Quote:
Originally Posted by DemonicPaul
Just ignore I am a Zither Zather Zuzz he is a troll who never says anything good about Apple
Plus he doesn't make sense when he posts or replys.
Pinch-to-zoom is definitely something I first saw on an Apple device. Don't know about the others.
Quote:
Originally Posted by ascii
Pinch-to-zoom is definitely something I first saw on an Apple device. Don't know about the others.
Pinch to zoom was demonstrated a full year before the announcement of the iphone.
:46
Quote:
Originally Posted by Tune
Pinch to zoom was demonstrated a full year before the announcement of the iphone.
:46
Yes Jeff Han was way ahead of everyone but the thing with patents is you have to put it in a product or you lose it. It's different to copyright, which can apply to mere ideas.
This statement seems so oddly backasswards that one wouldn't know where to begin correcting it.
Quote:
Originally Posted by DrDoppio
This statement seems so oddly backasswards that one wouldn't know where to begin correcting it.
I'll do it, then. It doesn't seem that difficult.
Quote:
Originally Posted by ascii
…the thing with patents is you generally have to put it in a product or exhibit some sort of real-world use for it or you might lose it come lawsuit time. While patents can apply to mere ideas, they are different from copyright, which must apply to concrete concepts directly intended for use.
That's also probably wrong.
Much better
I don't think you can ever lose a patent, whether you have a product or not. You patent your idea so that you can sell it. In case someone steals the idea and you sue, you'll have a better chance to prove that you've incurred losses if you actually have a product; however the idea is still yours, whether you manage to monetize it or not.
Quote:
Originally Posted by DrDoppio
I don't think you can ever lose a patent, whether you have a product or not. You patent your idea so that you can sell it. In case someone steals the idea and you sue, you'll have a better chance to prove that you've incurred losses if you actually have a product; however the idea is still yours, whether you manage to monetize it or not.
Really? I could have sworn that was part of the basis for 'patent trolling' as it's called: that you get the patent, never use it, and just before it's about to expire or whatever you sue someone who used a similar implementation in the nearly 20 years you had it and did nothing with it.
That's what some do, but not how it was intended. Many people believe the patent system is broken in its current implementation.
Quote:
Originally Posted by I am a Zither Zather Zuzz
This sort of strategy strikes me as abuse of the legal process.
There's no proof that the assessment of Apple's strategy is actually correct and even if it is, it's the same one used by basically every company including those suing Apple.
That said, from what I understand of Germany's court system these stays are actually possibly a good system. They have a rule that any patent used in a lawsuit has to be validated before you can sue for infringement. That's logical and fair. And they require those demanding injunctions against sales to put up huge amounts of money for damages if the other side ultimately wins, to avoid companies pulling stunts to avoid paying out. That's also fair. But if a patent hasn't been validated they will, and it seems often, simply refuse to grant the injunction and they pause the whole infringement issue until the validation part is done. Also fair. It doesn't mean squat for which side is right or wrong.
Heck perhaps the US should follow suit in this two track idea. A number of suits might be tossed over the patents being invalid making the issue of infringement moot
Quote:
Originally Posted by ascii
Yes Jeff Han was way ahead of everyone but the thing with patents is you have to put it in a product or you lose it. It's different to copyright, which can apply to mere ideas.
Wrong and wrong. Patents don't have to be used to be protected. That's trademarks. And copyrights do NOT apply to mere ideas, but to the execution of them.
Quote:
Originally Posted by Tallest Skil
Really? I could have sworn that was part of the basis for 'patent trolling' as it's called: that you get the patent, never use it, and just before it's about to expire or whatever you sue someone who used a similar implementation in the nearly 20 years you had it and did nothing with it.
That's the gist of how the trolls play but it isn't illegal thanks to the way that the US patent laws are written. The trolls can do this because use isn't required in patents, only trademarks (which is how Cisco lost over iPhone). And those rules are the part that everyone is screaming isn't fair. A company shouldn't be able to have a patent, never use it, refuse to license it and then 5, 10, 20 years later when someone comes up with the same general idea and makes a fortune, sue over it. That lack of protecting for years is also totally legal (again unlike trademarks where if you play the Honey Badger you are giving up your rights to scream later)
Thankfully there are some rules in the patent laws that knock the trolls out of business from time to time. Rules like if you make a substantial improvement on a patented item, such as creating the tech for a 'mere idea', you can have it deemed a new and patentable item regardless of the first patent. Showing that your 'invention' was just the natural progress of something you already have patented is another tactic. And then there's showing prior art that renders the patent in question as 'not new' and/or 'not original' can get it totally tossed. Or just showing that there's really no other way to do something (a tactic Samsung is trying to use with the prior art issue to invalidate Apple's design patents on the iPhone and iPad)
and thankfully the patent office is less and less willing to grant patents on ideas anymore. It has to be something really unique these days.
The patent office never granted patents on ideas. Patents are, by definition, base don implementation of ideas. Admittedly, the implementation is sometimes pretty sketchy and the patent office could be improved, but you can't patent an idea - and never could.
As for the rest, the whining about 'patent trolls' is absurd. Patents are property. The owner has the right to do whatever they want with their property. They can practice it, they can sell it, they can license it, or they can do nothing.
Let's say that I have a factory which makes widgets. I decide that I don't want to make widgets with the factory, so I sell it to a real estate investment firm. That firm might think that rents are too low, so they don't do anything with it at first and wait for the rental market to recover. A year or two later, they then rent the facility to someone who wants to make widgets. Does that maker hem a 'real estate troll'? Obviously not. Furthermore, the fact that this nice, new facility to make widgets was sitting there empty does not give anyone the right to break in and start using the factory to produce widgets without permission.
Exactly the same thing applies to patents. The owner is free to sell it to someone else if they wish - and that is an important part of making the patent process more efficient. Let's say that I'm a small company or individual inventor and come up with a new technology that improves the microelectronics manufacturing process or the efficiency of a nuclear power plant. If the people who want to block the sale of patents have their way, I would never receive any payment for my invention - since I'm certainly not going to have a few billion dollars lying around to build a fab or a nuclear plant. Even selling the patent directly to the people who can use it is not an optimum solution. I'm an inventor and may not be very good at selling or may feel that I don't have the clout to get a good deal. I may get more selling it to a patent broker who will then be able to get a good deal from the people who can use it.
There are certainly flaws in the current system, but whining about 'patent trolls' is pointless. The ability to buy, sell, and license patents is an integral (and essential) part of the system.
Quote:
Originally Posted by jragosta
Let's say that I have a factory which makes widgets. I decide that I don't want to make widgets with the factory, so I sell it to a real estate investment firm. That firm might think that rents are too low, so they don't do anything with it at first and wait for the rental market to recover. A year or two later, they then rent the facility to someone who wants to make widgets. Does that maker hem a 'real estate troll'? Obviously not. Furthermore, the fact that this nice, new facility to make widgets was sitting there empty does not give anyone the right to break in and start using the factory to produce widgets without permission.
That analogy is zero like what these termed "patent trolls" are doing. First because a patent is intellectual property not real property and they aren't doing anything with it until they sue over it. They aren't using it, they aren't licensing it etc. That they wait and do nothing until someone has money to pay damages and then they sue over an alleged infringement is what makes them a troll. If they really cared about the patent as IP they would have stopped it a decade ago when they first heard the whispers of possible infringement and then gotten their money by licensing the tech to the folks that wanted to use it after it was proven they have a valid patent in the issue.
Even if it were possible for Jeff Han to "lose" the patents he had filed on the processes he invented, the fact would still remain that he established prior art by having filed those patents in the first place. He would also have established further prior art through all the public presentations and white papers he made demonstrating those processes. This prior art would have rendered it impossible for anybody else to successfully defend any subsequent patents which attempted to cover the exact same processes.
Now, if somebody else came up with a subsequent patent which attempted to cover a substantially different process which happened to result in the same overall effect -- such patents may still be fair play.