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Google argues popular Apple patents are de facto standards essential

post #1 of 271
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In a letter to the Senate Judiciary Committee, Google asserts that popular patents held by companies like Apple should be considered de facto standards essential, arguing the ubiquitous inventions are just as important to consumers as certified essential properties.

In a breakdown of Google's letter and a response from Apple, All Things D reports that Google, and by proxy Motorola Mobility, are proposing the new argument in an ongoing patent litigation against Apple.

In Google's letter to the Judiciary Committee, General Counsel Kent Walker wrote:

While collaborative [Standards Setting Organizations (SSOs)] play an important part in the overall standard setting system, and are particularly prominent in industries such as telecommunications, they are not the only source of standards. Indeed, many of the same interoperability benefits that the FTC and others have touted in the SSO context also occur when one firm publishes information about an otherwise proprietary standard and other firms then independently decide (whether by choice or of necessity) to make complementary investments to support that standard in their products. ? Because proprietary or de facto standards can have just as important effects on consumer welfare, the Committee?s concern regarding the abuse of SEPs should encompass them as well.


According to the publication, the Android maker is claiming popular patents that have become all but ubiquitous in the marketsplace should be considered "commercially essential" and are therefore just as vulnerable for abuse as certified standards essential patents. The examples of multitouch technology and slide-to-unlock innovations, both of which have been used by Apple as leverage in patent dispute cases in the past, fall under the commercially essential category.

Multitouch Patent
Illustration from Apple's U.S. Patent No. 7,663,607 for a "Multipoint touchscreen" | Source: USPTO

Apple fired back with its own letter to the Committee on Wednesday written by the company's General Counsel Bruce Sewell.

"That a proprietary technology That a proprietary technology becomes quite popular does not transform it into a ?standard? subject to the same legal constraints as true standards,? Sewell wrote.

From Sewell's letter:

The capabilities of an iPhone are categorically different from a conventional phone, and result from Apple?s ability to bring its traditional innovation in computing to the mobile market. Using an iPhone to take photos, manage a home-finance spreadsheet, play video games, or run countless other applications has nothing to do with standardized protocols. Apple spent billions in research and development to create the iPhone, and third party software developers have spent billions more to develop applications that run on it. The price of an iPhone reflects the value of these nonstandardized technologies — as well as the value of the aesthetic design of the iPhone, which also reflects immense study and development by Apple, and which is entirely unrelated to standards.


Apple argues against Google's claim, saying that standardized technologies create the base on which non-standardized or proprietary technology is built. Therefore, if non-standardized property were governed by the same rules as declared essential patents there would be no innovation in the marketplace which would in turn harm consumers.

"There?s a big difference between technology that became popular because it was adopted as a standard and technology that became popular because consumers fell in love with it. In the case of the smartphone patent wars, the first makes a cellphone a cellphone and the second makes it an iPhone," All Things D's John Paczkowski writes. "One is a core technology, the other is experiential product differentiation."

The two companies are currently engaged in a fierce international court struggle over patents related to Google's Android and Apple's iOS mobile operating systems. Most recently a German court cleared Motorola's Xoom tablet of infringing Apple iPad patents.

In the U.S., the International Trade Commission is currently reviewing a recent decision that could see the ban of Apple products which infringe on a Motorola Wi-Fi patent. The implications of the review are severs as many iDevices could see sales stoppages in one of the world's largest wireless markets. Motorola first filed the grievance in 2010.
post #2 of 271
I actually agree with Google. On that note, I think their search algorithms have become essential for the industry. As much as I've tried switching to Bing or Yahoo, I keep coming back to Google's engine.

Those algorithms should be de facto standards and licensed under FRAND
post #3 of 271

Such an eloquent response from Apple's legal department.  But let's not forget that a lawyer will argue based on who his current employer is, not necessarily what he personally believes.  Was Mr. Sewell still working for Intel when they were being accused of anticompetitive business practices, or when Apple fans were still trashing Intel?  But now that he works for Apple, it's time to cheer him on.

post #4 of 271
Quote:
Originally Posted by rioviva View Post

I actually agree with Google. On that note, I think their search algorithms have become essential for the industry. As much as I've tried switching to Bing or Yahoo, I keep coming back to Google's engine.
Those algorithms should be de facto standards and licensed under FRAND

 

No, it's a very thin claim indeed.  It's also illogical.  

 

The reason the cellular radio patents are essential is that you can't make a phone without them.  Clearly, you can make a great phone, even a great multi-touch smartphone, without Apple's patents.  You can also make a search engine without Google's algorithms.  

 

Apple's patents aren't essential to making a phone or even competing with them in the same industry.  They are only essential to make a phone that will beat Apple economically.  Thus Google's facile, misleading use of the term "economically essential."  

 

Any judge or court that sides with Google on this would be "anti-competition."  They would be supporting Google as a company in it's fight with Apple, not supporting the industry as a whole.  

post #5 of 271

What an incredibly mealy-mouthed rationalization of intellectual property theft.

post #6 of 271

Since Google seems incapable of developing a "smartphone" OS that does not infringe, they should get out of the business. There is no requirement they develop products further in that area.

 

With such absurd illogic in play, one could just as easily argue that since I have less money than Larry Page, it is imperative that he send me $1 million to ensure my quality of life does not fall below acceptable standards.

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post #7 of 271

I'm glad Apple's legal team slapped Google in the face with that response. Tired of hearing Apple losing these patent cases overseas though.

post #8 of 271

Weak.

post #9 of 271

If Google succeeds in persuading lawmakers with this argument, I wonder if they will volunteer to pay Apple a FRAND fee for all the millions of Android devices which have been sold.

Something tells me they expect to dump this bucket of crap on the OEMs.

post #10 of 271

So if you're going to steal something, go big.  If you steal enough and make it popular you suddenly retroactively didn't steal it!

post #11 of 271

So Google is saying if we steal your idea and make it ubiquitous because we stole it and used it against you, it should no longer be a valid patent. Wow, just wow.

post #12 of 271
Quote:
Originally Posted by Gazoobee View Post

 

No, it's a very thin claim indeed.  It's also illogical.  

 

The reason the cellular radio patents are essential is that you can't make a phone without them.  Clearly, you can make a great phone, even a great multi-touch smartphone, without Apple's patents.  You can also make a search engine without Google's algorithms.  

 

Apple's patents aren't essential to making a phone or even competing with them in the same industry.  They are only essential to make a phone that will beat Apple economically.  Thus Google's facile, misleading use of the term "economically essential."  

 

Any judge or court that sides with Google on this would be "anti-competition."  They would be supporting Google as a company in it's fight with Apple, not supporting the industry as a whole.  

 

It's also interesting to note that economic viability is one of the tests as to whether a patent is sufficiently innovative to deserve protection.  If a company is making a profit using the patent then the profit is evidence the patent adds some value that wasn't there before.  In other words, it's possible Google is shooting itself in the foot with this argument.  They are essentially arguing that Apple's stuff is SO innovative that it must be patentable, but that the government should nationalize those patents.

post #13 of 271
Quote:
Originally Posted by rioviva View Post

I actually agree with Google. On that note, I think their search algorithms have become essential for the industry. As much as I've tried switching to Bing or Yahoo, I keep coming back to Google's engine.

Those algorithms should be de facto standards and licensed under FRAND

I was going to bring this up because it seems Google is not quite so happy to share technology that their core business depends on:

http://www.seroundtable.com/pagerank-patent-12731.html

They are only happy if it involves taking technology other people have developed.

Companies can't pick and choose what gets shared and what doesn't for their own benefit. Either everbody is forced to share or no one is. Since the former will never happen, the latter is the only option - anything in between creates an unfair market.

I don't know why Google can't just innovate instead of using litigation : D
post #14 of 271
Quote:
Originally Posted by blackbook View Post

 Tired of hearing Apple losing these patent cases overseas though.

Maybe there is something in this trend?

post #15 of 271

Oh Google. Begging the question are we? You can't define a patent as "commercially essential" by how widely copied it is, and then use that definition to argue that such patents cannot be therefore be enforced against the copiers.

 

It boils down to arguing, "if a patent holder's right is infringed on by enough parties, the patent holder loses the right to relief from infringement because now the infringing parties 'need' it, making it 'essential'." Yeah, what forum troll-grade horseshit logic is that? Google, you used to be cool.

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post #16 of 271
1) Of course they say that now when the entire industry is still playing catchup with Apple but remember 5 years ago how the iPhone was dismissed by so many. That's the problem with having such revolutionary technology and a slow judicial process, by the time it gets to court what seemed alien and unessential just a few years prior could seem essential. This is how technology has always worked.

"One Generation's Invention Is Necessity Of The Next" ~Unknown

2) There are some networking patents i know of, like with cellular air interfaces, that are essential because they do have to work the same across vendors to create a homogenous network, but I see no good examples of Apple's patents that are essential for the industry.

3) At least Google is acknowledging that Apple has patented tech before others. That's more than I can say for the resident trolls of this forum.
Edited by SolipsismX - 7/20/12 at 7:20pm

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post #17 of 271

So if enough other companies think what you've done is good work, they should be allowed to use it? You did all the hard work to make it popular, and because you succeeded, they'll use it with no questions asked? That... doesn't seem right.

post #18 of 271
Quote:
Originally Posted by Booga View Post

 

It's also interesting to note that economic viability is one of the tests as to whether a patent is sufficiently innovative to deserve protection.  If a company is making a profit using the patent then the profit is evidence the patent adds some value that wasn't there before.  In other words, it's possible Google is shooting itself in the foot with this argument.  They are essentially arguing that Apple's stuff is SO innovative that it must be patentable, but that the government should nationalize those patents.

 

Not that they will be successfully taking this tack, but in a world where this argument would make some kind of twisted sense, they'd also be arguing against the benefit of their own patents. "Google's search engine technology is obviously so superior, other competitors have no chance of ever catching up to them... therefore, their unique algorithms must be shared for the benefit of the world." Effin' insane.

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post #19 of 271
Quote:
Originally Posted by Marvin View Post

I don't know why Google can't just innovate instead of using litigation : D

Nicely done!

post #20 of 271

I'm waiting for Google to argue that if enough civil liberties are taken away from the citizens, the citizens lose the right to have those civil liberties because depriving citizens of those rights has become "essential" to government. Same goddamn horseshit argument.

"Apple should pull the plug on the iPhone."

John C. Dvorak, 2007
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post #21 of 271

The is very close to Google admitting, that they copied Apple patents.

post #22 of 271
Quote:
Originally Posted by SolipsismX View Post

3) At least Google is acknowledging that Apple has patented tech before others. That's more than I can say for the resident trolls of this forum.

I wonder if Apple could actually use this against Google/Motorola in court. Did Google specifically mention Apple's patents as being essential? Isn't that admission that it's innovative and no one else has been able to create something like it?

post #23 of 271
This is the first time Google has just come out and admitted the truth we already know. The iPhone is too good to be patented. It has become a human right, not just a competitive product. At least we can have an honest debate.
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post #24 of 271
Quote:
Originally Posted by leeeh2 View Post

The is very close to Google admitting, that they copied Apple patents.

 

Indeed!

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post #25 of 271
Quote:
Originally Posted by Mac Voyer View Post

This is the first time Google has just come out and admitted the truth we already know. The iPhone is too good to be patented. It has become a human right, not just a competitive product. At least we can have an honest debate.

 

Hahaha....ha.......... I hope you were kidding...

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post #26 of 271

I don't think Google is making this as an argument in the current litigation, clearly the law as currently stands has no such concept as "commercially essential". In theory, they're asking the laws be changed to create that standard.

 

In reality, this is about trying to head off investigations by the ITC and others about Motorola's (thus Google's) abuse of FRAND licensing for standards-essential patents. They're going for a classic defense, "Mooooom! But he does toooooo!" Since Apple, in fact, does have standards-essential patents (for H.264 and I believe some other standards) and does in fact license them under FRAND, Google has to redefine the bad behavior to include Apple.

post #27 of 271
Quote:
Originally Posted by Gazoobee View Post

 

No, it's a very thin claim indeed.  It's also illogical.  

 

The reason the cellular radio patents are essential is that you can't make a phone without them.  Clearly, you can make a great phone, even a great multi-touch smartphone, without Apple's patents.  You can also make a search engine without Google's algorithms.  

 

Apple's patents aren't essential to making a phone or even competing with them in the same industry.  They are only essential to make a phone that will beat Apple economically.  Thus Google's facile, misleading use of the term "economically essential."  

 

Any judge or court that sides with Google on this would be "anti-competition."  They would be supporting Google as a company in it's fight with Apple, not supporting the industry as a whole.  

 

I agree, but think the suggestion of forcing Google to license their Search Algorithm was sarcasm.
 
post #28 of 271

This is an interesting, if desperate legal theory.  If I'm Apple's legal team, I'm framing this letter to the Senate in their offices and trotting it out for any further legal jousting with Google.  Some people have said that in order for Google to enjoy iPhone patents, they will need to cede something important like their search patents.  It's more than that....they'd have to hand over Adsense and a bunch of other related IP.  And even all of that is still smaller than the overall business of the iPhone.

 

This also might be a better argument if Google was a bit player trying to survive in the Phone market.  But with Android phones outselling iPhone 2:1 worldwide because they used this IP and basically gave it away to whomever wanted it, it's not just a bad argument, it's hilariously bad.

post #29 of 271

Dog-eat-dog.

 

Apple got to non-FRAND features first, then patented them because it's ridiculously smart to do so.

 

Tough-titty, Google. 

 

I have a great solution for Google: just continue thieving, as before. After all, it's working *great* so far, right? RIGHT??

post #30 of 271

FAIR WARNING, from 2007.

 

 

 

What, did everyone think he was kidding??

post #31 of 271

Of course!

 

Apple's patents are definitely essential to all companies who wish to create products that are just like Apple's.

post #32 of 271

Google:

 

"We aren't first movers. We're asking for something (free ride) in compensation for our slowness."

 

OR

 

"We had this kind of tech, too. We were just too friggin stupid to think of patenting it."

 

OR

 

"We just randomly steal shit without thinking of the repercussions, and then raise all hell when people start catching on."

 

 

 

You be the judge. 

post #33 of 271
Quote:
Originally Posted by Sevenfeet View Post

This is an interesting, if desperate legal theory.  If I'm Apple's legal team, I'm framing this letter to the Senate in their offices and trotting it out for any further legal jousting with Google.  Some people have said that in order for Google to enjoy iPhone patents, they will need to cede something important like their search patents.  It's more than that....they'd have to hand over Adsense and a bunch of other related IP.  And even all of that is still smaller than the overall business of the iPhone.

 

This also might be a better argument if Google was a bit player trying to survive in the Phone market.  But with Android phones outselling iPhone 2:1 worldwide because they used this IP and basically gave it away to whomever wanted it, it's not just a bad argument, it's hilariously bad.

 

Apple won't and doesn't need to allow Google to use any of their patents. Frankly, if I was on Google's board of directors I'd be very worried about Google being sued into oblivion by every phone and tablet manufacturer who signed onto Android.

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post #34 of 271
Google: "if enough people copy your patents, we'll call it 'standards essential' thus making the copying retroactively legal."
Steve Jobs was right: "That 'don't be evil'? It's bullshit."

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post #35 of 271
Quote:
Originally Posted by Quadra 610 View Post

Google:

 

"We aren't first movers. We're asking for something (free ride) in compensation for our slowness."

 

OR

 

"We had this kind of tech, too. We were just too friggin stupid to think of patenting it."

 

 

 

You be the judge. 

 

I believe a nearly identical scenario arose in 'Atlas Shrugged'. Apple... patent holder of Reardon Metal.

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post #36 of 271

With a few exceptions, Apple doesn't do licensing. Which is part of the reason they're so successful today. 

 

The Apple Experience is reserved for Apple products. 

 

This enables a massive level of differentiation. Which is what Apple is known for today. 

post #37 of 271

My hatred of Google is growing daily.

 

Standards Essential Patents are established by the patent holder and other companies, who agree in advance to cross license the patents at fair, reasonable and non-discriminatory rates. They are not established by lame, backstabbing, copycat companies who unilaterally decide that a competitor's private patents, upon which no standards have been established, must be shared with others whether they like it or not.

 

Google is following Microsoft's footsteps as a predatory company with few original ideas, and I hope that this leads them to their fall just as it did Microsoft.

 

 
 
post #38 of 271
so multitouch should belong to one company?

morons.
post #39 of 271
Quote:
Originally Posted by Suddenly Newton View Post

Google: "if enough people copy your patents, we'll call it 'standards essential' thus making the copying retroactively legal."
Steve Jobs was right: "That 'don't be evil'? It's bullshit."

Yep! 

 

Sent from the ghost of Steve Jobs as interpreted by Mac Voyer. 

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post #40 of 271
Quote:
Originally Posted by AbsoluteDesignz View Post

so multitouch should belong to one company?
morons.

I remember at the time, people were mocking multi-touch, and damning it to failure, kind of the way they are doing with Siri. How long before Siri becomes an essential technology? 

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