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Judge interprets '263 patent in Apple's favor in HTC Android appeal

post #1 of 139
Thread Starter 
United States Circuit Judge Richard A. Posner has issued an interpretation of Apple's '263 patent that is likely to result in a jury finding HTC (and Android in general) of infringement in the key "realtime API" case previously passed over by the ITC.

The '263 patent is very significant because it represents technology at the core of Android, rather than being a physical design or user interface feature that companies using Android can easily work around or remove.

An ITC Administrative Law Judge originally found HTC's Android products were infringing upon Apple's "realtime API" patent, but after his ruling the six member ITC Commission issued a final ruling on the matter that reversed the ALJ's finding and only held HTC to infringe upon Apple's less important "Data Detectors" patent, a feature HTC promised to remove from its products.

Apple appealed the ITC Commission's decision, which was based upon an argument by HTC that insisted the word "realtime" in the patent changed its meaning to the extent that Android could not be held in infringement of it.

HTC's line of reasoning in the case was described as "formalistic wordplay" by the original ALJ, and dismantled in detail by programmer and patent-issues journalist Florian Mueller of FOSS Patents last September.

Android's open Infringement

Apple didn't just claim infringement of its '263 patent by Android; it went further to draw a line between Apple's original development of the technology and Android's use of it at Google under the direction of the project's leading developer Andy Rubin.

Apple argued that Rubin "began his career at Apple in the early 1990s and worked as a low-level engineer specifically reporting to the inventors of the '263 [realtime API] patent at the exact time their invention was being conceived and developed."




Mueller now reports that Apple's appeal is being taken seriously by the new appellate judge, who has issued an order clarifying, "I therefore construe 'realtime application program interface' in claim 1 of the '263 patent to mean an 'API that allows realtime interaction between two or more sub-systems," the interpretation Apple proposed.




Mueller notes that "a jury is very likely to find Android to infringe the patent based on that construction but much less likely to deem the patent invalid." He previously noted that Andy Rubin's involvement could also give Apple grounds for claiming willful infringement.

In Apple's patent appeal of the ITC's HTC decision with the Court of Appeals for the Federal Circuit, Mueller states that Judge Posner's interpretation "will clearly bear more psychological weight with the CAFC than the final ITC ruling," and adds that if the appeals court "also agrees to interpret the '263 patent in a technically logical way, Android may face a major problem."
post #2 of 139
Talk about a possible exploding bomb for Android.
post #3 of 139
Cue fandroids who argue that Google is the poor, innocent victim here in 3, 2, 1.....
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post #4 of 139
Andy Rubin is like Johnny Appleseed.
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post #5 of 139
No wonder Steve J was pissed off that Android was a stolen product. I could not imagine my fury if someone working on my project went to a competitor and build the same project.

It really seems that Google decided to move forward with releasing Android at lightspeed, d@mned the consequences .. they would deal with them later.

First ripping of Sun^H^H^HOracle/Java -- and then ripping off Apple.

If Google were sticking to their '"Don't Be Evil" mantra, they would have taken their time and actually developed a new product and not based Android on theft.

I am SO GLAD I dumped my Google stock in early-2010. Either Google has lost their way, or unfortunately, L. Paige might be another B. Gates. Google, have some respect for the law, have some respect for your employees -- you have good talent and plenty of resources -- you don't need to steal.

:shakes head: ... As an ex-Google fan, I'm pretty disappointed by the last couple of years.
post #6 of 139
And in other news...the six member ITC Commission are still enjoying their brand new Mercedes Benz's.
post #7 of 139
Quote:
Originally Posted by Daramouthe View Post

Talk about a possible exploding bomb for Android.

At the risk of geekdad pretending not to know what the word 'context' means, I'll say that between this and Oracle (and with a few more wins on the Apple side), we just might have a case against Google itself coming up here

Originally Posted by Slurpy

There's just a TINY chance that Apple will also be able to figure out payments. Oh wait, they did already… …and you’re already f*ed.

 

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Originally Posted by Slurpy

There's just a TINY chance that Apple will also be able to figure out payments. Oh wait, they did already… …and you’re already f*ed.

 

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post #8 of 139
Wow, this could be very bad news for Android. A lot of people were surprised that the '263 patent wasn't upheld in the ITC complaint against HTC, but then again that's why we have appeals.

The interesting part is the judge. If you could have any judge agree with your position it would be Posner. The guy is a living legend.

I still laugh at idiots who think Rubin working for Apple has nothing to do with this patent and possible infringement by Android.

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post #9 of 139
Quote:
Originally Posted by Tallest Skil View Post

At the risk of geekdad pretending not to know what the word 'context' means, I'll say that between this and Oracle (and with a few more wins on the Apple side), we just might have a case against Google itself coming up here

I think Apple needs to continue to take the fight to the handset makers. They can sue Moto maybe but suing Google directly will be much more difficult since they don't sell anything that can be blocked by the ITC aside from Nexus. Oracle on the other hand would only be looking for damages and licensing fees which ultimately doesn't help Apple all that much.

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post #10 of 139
Quote:
Originally Posted by Robin Huber View Post

Andy Rubin is like Johnny Appleseed.

*GASP*

Google will be working on their own ePub creator, then!



Originally Posted by Slurpy

There's just a TINY chance that Apple will also be able to figure out payments. Oh wait, they did already… …and you’re already f*ed.

 

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Originally Posted by Slurpy

There's just a TINY chance that Apple will also be able to figure out payments. Oh wait, they did already… …and you’re already f*ed.

 

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post #11 of 139
More FUD from Mueller?
post #12 of 139
Yes! Program around that Andy!

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post #13 of 139
Quote:
Originally Posted by mstone View Post

I think Apple needs to continue to take the fight to the handset makers. They can sue Moto maybe but suing Google directly will be much more difficult since they don't sell anything that can be blocked by the ITC aside from Nexus. Oracle on the other hand would only be looking for damages and licensing fees which ultimately doesn't help Apple all that much.

The point of taking patent cases to the ITC is that it can block products relatively quickly, rather than fighting for years and getting either nothing or a vindication ruling 4 years later that doesn't matter anymore.

That's why Apple (and Motorola, Microsoft, etc) is taking cases to the ITC. But Apple is also suing in regular courts, and once it builds up enough wins (especially important ones like this 263 patent), it could sue Google for damages, if Google doesn't give up on copying Apple's stuff.

It actually seems more likely that Oracle will win enough of a case against Google to make the future of Android a dead end, converting it either to Java, or alternatively, Google backing away from a JVM design and jumping to phones that run web apps like the Chrome OS.
post #14 of 139
Quote:
Originally Posted by Corrections View Post

But Apple is also suing in regular courts, and once it builds up enough wins (especially important ones like this 263 patent), it could sue Google for damages, if Google doesn't give up on copying Apple's stuff.

They should have had at least one win by now. So far it's only a few preliminary decisions that have both given and taken away. Apparently the blatant copying is nowhere near as cut-and-dried as some have made it out to be.
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post #15 of 139
Quote:
Originally Posted by mstone View Post

I think Apple needs to continue to take the fight to the handset makers. They can sue Moto maybe but suing Google directly will be much more difficult since they don't sell anything that can be blocked by the ITC aside from Nexus.

Still, there is nothing to prevent an injunction against the distribution of Android itself.
post #16 of 139
I am not a patent expert, but this looks like a bad and questionable patent to me.

But what about the essential UI innovations that define the iPhone, and also made Android so successful and interchangeable with the Apple's original products?
I mean multi-touch gestures, inertial scrolling, page transitions?
They covered by Apple's IP, aren't they? If so why can't they win based on these patents?
Are they considered prior art, invalid?
post #17 of 139
Quote:
Originally Posted by chabig View Post

Still, there is nothing to prevent an injunction against the distribution of Android itself.

I don't see how Apple could ask the courts to do that since Android is just code and free code at that. Apple can sue the handset makers because that is where the implementation of design patents is infringed upon. Oracle on the other hand has alleged that Google lifted some of their code so they could possibly be in a position to prevent the distribution of Android. Except that is not what Oracle would want. They would surely prefer royalties since they don't have a competing product in the marketplace.

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post #18 of 139
Quote:
Originally Posted by Gatorguy View Post

Quote:
Originally Posted by Corrections View Post

But Apple is also suing in regular courts, and once it builds up enough wins (especially important ones like this 263 patent), it could sue Google for damages, if Google doesn't give up on copying Apple's stuff.

They should have had at least one win by now. So far it's only a few preliminary decisions that have both given and taken away. Apparently the blatant copying is nowhere near as cut-and-dried as some have made it out to be.

Are you qualified to say they "should" have at least one win by now? I'm no patent attorney, and I'm guessing you aren't either. This shit doesn't happen quickly, either way. And learn how to use the quote function without screwing it up.
post #19 of 139
Quote:
Originally Posted by mstone View Post

I don't see how Apple could ask the courts to do that since Android is just code and free code at that. Apple can sue the handset makers because that is where the implementation of design patents is infringed upon. Oracle on the other hand has alleged that Google lifted some of their code so they could possibly be in a position to prevent the distribution of Android. Except that is not what Oracle would want. They would surely prefer royalties since they don't have a competing product in the marketplace.

I think it would be easy for a court to tell Google to stop distributing Android, if the code that is being distributed infringes Apple patents.
post #20 of 139
Quote:
Originally Posted by chabig View Post

I think it would be easy for a court to tell Google to stop distributing Android, if the code that is being distributed infringes Apple patents.

The code can only infringe on a patent if the code itself was copied, not the implementation of a concept. If the code is different then there is no infringement, that is until it is implemented and only then does the look and feel, design and functionality become an issue as I believe is the case of patent 263. The code itself is not an infringement unless it was stolen, but I don't think that is what Apple is arguing.

I think the bigger question is Google going to help their licensees with their legal defenses as Apple continues to sue them?

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post #21 of 139
Since Android source code is available, the implementation of the said patent can be verified by independent experts, right?
post #22 of 139
Quote:
Originally Posted by mstone View Post

The code can only infringe on a patent if the code itself was copied, not the implementation of a concept. If the code is different then there is no infringement, that is until it is implemented and only then does the look and feel, design and functionality become an issue as I believe is the case of patent 263. The code itself is not an infringement unless it was stolen, but I don't think that is what Apple is arguing.

Why do you think patent infringement relies on copied code? Patent infringement doesn't rely on copied code. In fact, the patent in question has no code! The patent is on a method of performing real-time signal processing on serially transmitted data. If the method Google uses infringes on the claims of Apple's patent, then Android infringes, even if the code is different.

That said, I am no expert, and am not able to argue this point with certainty.
post #23 of 139
steve jobs will be smiling where he is now..round 1 good start
post #24 of 139
Quote:
Originally Posted by chabig View Post

That said, I am no expert, and am not able to argue this point with certainty.

Nor am I.

I look at it like this: Cars are legal and booze is legal but if you combine them, that is against the law.

The Android code is legal since it is not a copy (for sake of argument) and a piece of hardware made of silicon and plastic is also legal. It is when you combine the two that a possible infringement might become an issue. It is the implementation not the actual code that is being challenged. Because the code is free, the implementer, i.e. the handset maker, who is selling the end product, is the one in violation.

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post #25 of 139
Quote:
Originally Posted by mstone View Post

Nor am I.

I look at it like this: Cars are legal and booze is legal but if you combine them, that is against the law.

The Android code is legal since it is not a copy (for sake of argument) and a piece of hardware made of silicon and plastic is also legal. It is when you combine the two that a possible infringement might become an issue. It is the implementation not the actual code that is being challenged. Because the code is free, the implementer, i.e. the handset maker, who is selling the end product, is the one in violation.

That certainly sounds reasonable. Perhaps it's just that simple, and the reason Apple hasn't sued Google directly, tho I'm no expert either.
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post #26 of 139
Quote:
Originally Posted by AppleInsider View Post

...
Mueller notes that "a jury is very likely to find Android to infringe the patent based on that construction but much less likely to deem the patent invalid."
...

I believe Mueller is mistaken here. The current opinion of the commission states that the '263 patent is invalid under Apple's construction of "realtime API". If this opinion is upheld, the chance of deeming the patent invalid is higher with the new appellate judge's order to accept Apple's definition, so an infringement would be moot.

In any case, Apple is successful even without Android suffering a setback, so the spiteful remarks are quite unnecessary.
post #27 of 139
Quote:
Originally Posted by mstone View Post

I don't see how Apple could ask the courts to do that since Android is just code and free code at that. Apple can sue the handset makers because that is where the implementation of design patents is infringed upon. Oracle on the other hand has alleged that Google lifted some of their code so they could possibly be in a position to prevent the distribution of Android. Except that is not what Oracle would want. They would surely prefer royalties since they don't have a competing product in the marketplace.

Absolutely false. Even a non-profit organization or someone distributing free code can easily be sued for patent infringement. Contributory infringement, if nothing else.

Quote:
Originally Posted by mstone View Post

The code can only infringe on a patent if the code itself was copied, not the implementation of a concept. If the code is different then there is no infringement, that is until it is implemented and only then does the look and feel, design and functionality become an issue as I believe is the case of patent 263. The code itself is not an infringement unless it was stolen, but I don't think that is what Apple is arguing.

You're confusing copyright infringement with patent infringement. For patent infringement, it's irrelevant whether it's the same code. If you were to patent a way to use a certain process to derive a result, then it would be a violation to use the same process to derive that result - regardless of whether the code was different or not.

In fact, requiring the thing to be identical would negate the entire principle of having a patent. "Your honor, our superconducting magnet does not infringe the patent because even though we copied their design exactly, we wound ours counterclockwise while they wound theirs clockwise." See how silly that would be?

Quote:
Originally Posted by mstone View Post

I think the bigger question is Google going to help their licensees with their legal defenses as Apple continues to sue them?

That's already been determined. Google has made it clear that they're not going to indemnify anyone. Just one of the reasons Android licensees should be scared to death about Google acquiring Motorola. Motorola will have access to Google's resources while no one else will.
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post #28 of 139
Quote:
Originally Posted by AppleInsider View Post

Apple argued that Rubin "began his career at Apple in the early 1990s and worked as a low-level engineer specifically reporting to the inventors of the '263 [realtime API] patent at the exact time their invention was being conceived and developed."

I wikied Andy Rubin...

His years at Apple, then General Magic were between 1989-1992 and 1992-1995.

Steve Jobs was not at Apple from early 1985 to late 1996.

So Andy and Steve never crossed paths at Apple.

I don't know that this has any bearing on the patent or the ruling...
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post #29 of 139
Quote:
Originally Posted by Srice View Post

If Google were sticking to their '"Don't Be Evil" mantra, they would

I admit that for a while I liked the mantra, or the sound of it. But, in recent 2-3 years, I have started to doubt seriously Google's intention. I think it is just a cover for whatever evil Google desires to do. As of now, I consider Google to BE the Evil.
post #30 of 139
Quote:
Originally Posted by jragosta View Post

Absolutely false. Even a non-profit organization or someone distributing free code can easily be sued for patent infringement. Contributory infringement, if nothing else.

Provided there is some precedent for such a case, why then has Apple not simply asked Google to stop or ask the court to issue a cease and desist ?

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post #31 of 139
Quote:
Originally Posted by mstone View Post

...

I think the bigger question is Google going to help their licensees with their legal defenses as Apple continues to sue them?

Quote:
Originally Posted by jragosta View Post

...

That's already been determined. Google has made it clear that they're not going to indemnify anyone. Just one of the reasons Android licensees should be scared to death about Google acquiring Motorola. Motorola will have access to Google's resources while no one else will.

At what point in time does Windows Phone 7 and Windows 8 become more appealing to OEMs than Android.

Some are already paying MS to use Android... I'd be surprised if most OEMs aren't actively looking for a less encumbered alternative.

It will be ironic if all the supposed benefits of Android to Google -- end up being realized by Microsoft.

Maybe Rubin is an undercover MS plant at Google -- similar to Elop at Nokia...

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post #32 of 139
Quote:
Originally Posted by chrispy View Post

And in other news...the six member ITC Commission are still enjoying their brand new Mercedes Benz's.

Their brand new Mercedes Benz's what?
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post #33 of 139
Quote:
Originally Posted by jj.yuan View Post

I admit that for a while I liked the mantra, or the sound of it. But, in recent 2-3 years, I have started to doubt seriously Google's intention. I think it is just a cover for whatever evil Google desires to do. As of now, I consider Google to BE the Evil.

Like everything Google does it works because of its ambiguity. On the one hand, it's obvious from the context that "don't be evil" meant "don't act like other web portals and ad services, put the users first" but it's ambiguous enough that regardless of what they do Google fanatics can now say "that's not really evil!" They do the same thing with using "open" in an ambiguous, flexible way. I don't know if it's intentional or it just reflects the ambiguity at the heart of Google (i.e., Page and Brin are kind hearted guys stuck in what is inevitably a seedy revenue model), but that ambiguity has gone a long way for them. I think it was Horace Dediu who said Google is basically a regressive tax on the internet "poor" (normal users) in order to provide services for the internet "rich" (tech-savvy geeks who block ads but consume more of Google's services). Another way to look at it is that Google buys off the geek / open source community (who are usually the main critics when it comes to privacy and the commercialisation of the internet) in order to avoid criticism.
post #34 of 139
Quote:
Originally Posted by mstone View Post

The code can only infringe on a patent if the code itself was copied, not the implementation of a concept.

actually you can have a patent infringement with directly copying the code. It all depends on how deep you go into having the same implementation.

In this case, apple seems to be arguing that their patent is one specific and unique implementation of the general idea of subsystems swapping info etc. AND that Rubin was a key figure in creating that implementation and took it to Google where they used the same implementation, only a few words are different due to using a different coding language.

And it seems that this judge at least agrees that the patent is valid and infringement has occurred.

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post #35 of 139
Quote:
Originally Posted by charlituna View Post

...

And it seems that this judge at least agrees that the patent is valid and infringement has occurred.

Where do you read that?
post #36 of 139
Quote:
Originally Posted by charlituna View Post

actually you can have a patent infringement with directly copying the code. It all depends on how deep you go into having the same implementation.

In this case, apple seems to be arguing that their patent is one specific and unique implementation of the general idea of subsystems swapping info etc. AND that Rubin was a key figure in creating that implementation and took it to Google where they used the same implementation, only a few words are different due to using a different coding language.

And it seems that this judge at least agrees that the patent is valid and infringement has occurred.

Yes, but against HTC, the implementer, not Google, the programmer. I don't disagree that Google totally ripped off iPhone OS but finding a legal precedent to apply to making a case against Google seems to be more difficult than bringing a suit against a handset maker.

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post #37 of 139
Simply put: Andy Rubin stole Apple's technology to start Android. Sad.
post #38 of 139
Quote:
Originally Posted by digitalclips View Post

Their brand new Mercedes Benz's what?

Perhaps they are enjoying Mercedes Benz's new navigation system? http://www.dynamicpatents.com/2009/0...-infringement/

Mercedes-Benz USA Subject of Patent Infringement

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post #39 of 139
For law, we have to quarrel over the small details that often may seem mildly bogus. The big picture is Google having access to Apple's board and buying a phone OS project and swinging it in the direction of what they saw in apple and knew they'd have to copy or there phone platform would be irrelevant. That's why Apple deserve justice against Android.

(And Samsung is just as shameless)
post #40 of 139
Quote:
Originally Posted by urbansprawl View Post

For law, we have to quarrel over the small details that often may seem mildly bogus. The big picture is Google having access to Apple's board and buying a phone OS project and swinging it in the direction of what they saw in apple and knew they'd have to copy or there phone platform would be irrelevant. That's why Apple deserve justice against Android.

(And Samsung is just as shameless)

Are you claiming that Google saw the direction via Rubin (who worked at Apple in the 90-ties), or via Schmidt, who was on the board of Apple 2006-2009? Or maybe it was one big coordinated scam planned more than 20 years ago, possibly with Samsung's involvement?
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