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iPhone IP Wars: Nokia vs Apple vs HTC, Motorola & Samsung

post #1 of 35
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In 2007 Apple introduced iPhone, emphasizing that virtually every significant aspect of its entirely new experience and industrial design was protected by patents. Three years later a global patent war erupted. Who's to blame?

Patented


There's an often repeated idea that Apple has abused its patent portfolio to restrain competitors and hold back innovation using dubious patents, but this is all actually quite backward, as a factual review of the history of iPhone IP Wars demonstrates.

Apple continues to win the majority intellectual property cases



In late 2012, a U.S. Federal Court jury trial awarded Apple over $1 billion in damages for Samsung patent infringement (in a case later partly retried and separately appealed) while awarding Samsung nothing for its own series of patent infringement claims.

Last fall, the Obama administration vetoed efforts by Samsung to ban imports of certain Apple mobile products over a 3G-related patent of its own. The International Trade Commission then granted Apple an import ban against certain infringing products from Samsung and Motorola in two separate cases.

This may create the appearance that Apple is getting preferential treatment in the United States in the handling of its intellectual property rights. However, there's a big difference between Apple, Samsung and Motorola in the patents each is asserting and what each is demanding. It's also noteworthy that Apple didn't start the iPhone IP wars.

While many pundits expected Apple to bring patent lawsuits against Palm in early 2009 after the release of webOS, the company elected not to, despite the fact that the tech media had played up the Palm Pre as a major threat to the iPhone.

Will Apple sue Palm?


Nokia instigates iPhone IP War: 2009



Instead, starting in October 2009, Apple became the target of other mobile makers' patent lawsuits when Nokia first initiated a patent lawsuit against Apple over wireless patents.

Nokia's litigation was intended to make up for the company's failure to compete in the smartphone market against iPhone with its own Symbian and Maemo platforms. Nokia had witnessed the iPhone crush its global business, particularly at the high end of smartphones, which were by far the most most lucrative segment of its business.

Apple responded with a defensive patent suit of its own. The two companies settled out of court 20 months later, with Apple paying negotiated royalties and signing a limited cross license of patents. After winning an large infusion of cash via its settlement from Apple, Nokia now continues to struggle in its partnership with Microsoft under the Windows Phone platform, and recently entered into a deal to sell its smartphone business to Microsoft.

Smartphones spark U.S. lawsuits: 2010



In March 2010, Apple launched an initial lawsuit against HTC, alleging infringement of 20 patents related to iPhone. After 32 months of wrangling, including HTC's assertion of patents provided to it by Google; HTC's ineffectual acquisition of S3 to gain patent ammo and an ITC import ban sought by Apple in early 2011, the two companies agreed to settle out of court with a ten-year, limited cross licensing arrangement in November 2012.

In October 2010, Motorola Mobility sought to impose an ITC import ban against Apple, resulting reciprocal legal action by Apple. Claims on both sides were dismissed by Judge Richard Posner in June 2012, although both sides have appealed the decision.

Judge Posner has described patents (at least in the smartphone industry) as being, in his opinion, unworthy of protection by the courts. This has helped turned America's patent-related lawsuits into a crapshoot where the outcome is based simply the arbitrary feeling of the particular justice ruling that day.

Last August, an appeals court reprimanded the ITC and reversed its decision on two of Apple's patents. In November, Google's motion for a new hearing on that matter was denied.

Apple sues Samsung as Android tablets sputter: 2011



Apple filed its first federal complaint against Samsung in April 2011, a year after its case against HTC started and 18 months after it first entered smartphone legal issues initiated by Nokia. Apple's delay was motivated by a desire to maintain relations with Samsung as one of its critically important suppliers; Apple had been roughly tied with Sony as being Samsung's largest component customer.

Apple's initial 2011 suit targeted the trade dress and technology of Samsung's first Galaxy S and Galaxy Tab. Samsung's Galaxy phone had appeared one year after the release of iPhone 3GS, while its new tablet was unveiled in late 2010, ten months after Apple introduced the iPad. Months later, Google introduced Android 3.0 Honeycomb, enabling a new generation of Galaxy Tab models that looked even more like Apple's iPad.

Samsung copies Apple


Both of Samsung's new Galaxy products were tremendous advances upon the company's previous i5700 flagship Android phone and its $775 Q1EX-71G Tablet PC, of which Fast Company had originally described as "a taste of what an Apple tablet might be."

Samsung's Windows UMPC turned out to be nothing like Apple's iPad, in appearance, in functionality, in capability or in desirability. Instead, it was Samsung that belatedly delivered Apple's flavor.

How it did so was detailed by Samsung in an extensive 132-page internal document subsequently revealed in the trial: a crash course effort over just a few months where Samsung abandoned its own designs to copy every facet of Apple's work, from the product hardware to software features right down to screen icons, product packaging and related accessories.

The trial also revealed that Apple had expressed immediate concerns about the Galaxy S after its launch in June 2010, but Samsung refused to address those patent infringement issues. Apple prepared to go to trial after Samsung brazenly expanded its efforts to make its products, marketing, packaging and accessories appear identical to Apple's.



Both faster than expected and not faster than expected



At the beginning of 2011, Samsung announced the "Galaxy S smartphone has achieved worldwide sales of 10 million units, while the Galaxy Tab - an Android-powered tablet device - attracted strong year-end demand."

Samsung didn't say how many Galaxy Tabs it sold, but The Wall Street Journal noted at the time that "in early December, Samsung announced it had sold 1 million, declaring that sales were going 'faster than expected' Then, in early January, Samsung announced sales of 2 million."

However, that report also pointed out that Samsung's "sales" were really just "shipments," and quoted Samsung executive Lee Young-hee as saying, just two weeks later, that the company's "sell-in was quite aggressive" for the Galaxy Tab because the company believed "it was required to have consumers invest in the device. So therefore, even though sell-out wasn't as fast as we expected, we still believe sell-out was quite OK." (Emphasis added.)

Samsung growth engine shifts from suppling Apple components to selling Apple copies



For 2010, Samsung's profits had grown dramatically over the previous year: 58 percent overall, with gross margins up from 8 percent to 11.2 percent. However, most of Samsung's profits (58 percent) and nearly all of its growth had come from its semiconductor business, fueled by Apple's huge component orders.

As Apple's patent lawsuit slowly progressed in 2011, Samsung realized it couldn't sell many full priced tablets but could sell lots of subsidized phones. Alongside a new Galaxy S II, Samsung had been successful in selling a "phablet" hybrid, the Galaxy Note, which was designed to deliver a tablet-like device with a smartphone-like subsidy.

For 2011, Samsung announced a 79 percent increase in operating profits, and a 52 percent increase in its mobile sector, "growth mainly driven by strong sales of Samsung's Galaxy S II and Galaxy Note."

Samsung portrays itself as the next big thing: 2012



Throughout 2012 and into 2013, Samsung continued to copy Apple in nearly every respect, from its commercials to its retail store efforts, some of which were even decorated with Apple's iPhone icons.

Emboldened by the slow progress of Apple's patent case, which was further slowed by Samsung's series of efforts to sandbag any legal progress in the case, Samsung released its Galaxy S III and Galaxy Note 2 in 2012, further expanding its mobile sales by leveraging its much greater, established channel for selling phones.

By the end of September 2012, Samsung had firmly entrenched the idea among members of the media that its mobile device sales were poised to destroy Apple and take away its business, inline with its internal "Kill Apple" offensive.

Samsung's Crisis of Design shifts to a Design of Crisis for Apple



Samsung worked throughout 2013 to invent the idea the Apple had suddenly run out of "innovation," and the tech media, weary of writing about Apple's success, played along.

Business Insider, for example, reported "disappointment" regarding a lofty expectation that Apple would sell ten million iPhones in one weekend (despite being based solely upon one analyst's guesses) while at the same time setting a very low threshold for congratulating Samsung: ten million phones shipped in a month.

GS4

iPhone 5


This type of slanted reporting resulted in the perception that Samsung was selling more high end smartphones than Apple, despite the fact that Samsung wasn't reporting nearly as much profit. Unlike Apple, Samsung wasn't consistently reporting how many phones it sold.

It wasn't until the end of 2013 (when Samsung's executives collectively spilled enough sales data to clarify beyond any doubt that the company had actually sold only about two thirds as many premium smartphones as Apple) that it was understood that Samsung's entire blustering campaign of having blown past Apple, taking Android with it to a leadership position, was all just hot air.

Media sources, however, continued to report that Samsung was selling more "smartphones" than Apple, despite the fact that Apple was only selling modern, powerful and profitable iPhones while Samsung was predominately shipping low end, low profit devices like the Galaxy Y, a slight of hand that also fueled a massive erosion in Average Selling Price.

The Samsung charade began to run out of innovation itself after the awkward launch of its Galaxy S4 flagship, and particularly as its premium sales failed to live up to the company's own expectations, let alone the guesses of its most optimistic analysts. "We are amazed by how analysts and the media have turned on Apple during the recent stock downdrafts with statements that Samsung is 'out-innovating' Apple. One would believe that Samsung is crushing Apple in the mobile phone market. We believe this is complete nonsense" - Brian White, Topeka Capital Markets

Samsung's Galaxy S4 flagship performed so poorly that it forced the company to shift its Application Processor strategy, returning to its negotiations with Apple with more favorable fab pricing in order to sustain its production volumes.

As analyst Brian White of Topeka Capital Markets observed, "we are amazed by how analysts and the media have turned on Apple during the recent stock downdrafts with statements that Samsung is 'out-innovating' Apple. One would believe that Samsung is crushing Apple in the mobile phone market. We believe this is complete nonsense."

A second Apple vs. Samsung trial looms



Three years after Apple initiated its first U.S. lawsuit against Samsung, a second trial is gearing up to focus on five additional Apple patents and four presented by Samsung (half of which the company acquired from third parties for litigation purposes).

Apple filed its second suit in late 2011, roughly a year before being awarded its $1 billion win by the first jury. However, the wheels of the court are moving so slowly that the second trial, which begins next Monday, won't even cover Samsung's last Galaxy S4 flagship released in the first half of last year.

Apple is being tasked with developing new products that can compete with Samsung, a company that documented its own efforts in illegally copying every possible detail of Apple's products.

At the same time, Apple's engineers and executives are being taken away from their work to deal with litigation. The company also faces intense criticism for "litigating rather than innovating," despite the fact that it is clear that Apple is not only focused on innovation, but started out as the target of litigation by mobile firms including Nokia and Motorola.

The facts involved in Apple's second lawsuit against Samsung, which AppleInsider will outline in its ongoing coverage of the trial, are even more compelling than those in the first. But first, consider a primary reason why members of the media have so often gotten the facts wrong in their coverage of Apple vs. Samsung, a subject addressed in the next segment.
post #2 of 35
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Originally Posted by AppleInsider View Post

At the same time, Apple's engineers and executives are being taken away from their work to deal with litigation. The company also faces intense criticism for "litigating rather than innovating," despite the fact that it is clear that Apple is not only focused on innovation, but started out as the target of litigation by mobile firms including Nokia and Motorola.

http://www.fosspatents.com/2011/08/proof-apple-attacked-motorola-not-other.html

Timely article from AI with the new trial getting ready to start.
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post #3 of 35
"Hey, Dan... Yeah, how ya doin'? Cool, cool. So, we need a new 10,000 word story for tomorrow. Think you can throw together another one of your usual pieces for us under the standard arrangement? We need you to make this one really clicky, so feel free to go wild. Awesome, dude. You're a real lifesaver."

Proud AAPL stock owner.

 

GOA

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Proud AAPL stock owner.

 

GOA

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post #4 of 35
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Originally Posted by Gatorguy View Post


http://www.fosspatents.com/2011/08/proof-apple-attacked-motorola-not-other.html

Timely article from AI with the new trial getting ready to start.

 

This is as much a PR war as the patent war.  It was very interesting the fact that "Motorola sued Apple in 2010 for MP3, Wifi, and GPRS patents" was conveniently omitted in many reference (including a revised Wikipedia) to make the appearance of Apple sued everyone Android.

 

Here is the reference of the original Motorola suit that was dated Oct 7, 2010, and it was before Motorola split into Mobility & Solutions in January 2011.

http://www.digitaltrends.com/mobile/motorola-sues-apple-over-18-patents/#!BBu5W

 

And ever since the iPhone came out, Apple was targeted by patent trolls:

http://tech.fortune.cnn.com/2013/08/28/apple-patent-troll-npe/

post #5 of 35

I'm not a pessimist. I'm an optimist, with experience.
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I'm not a pessimist. I'm an optimist, with experience.
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post #6 of 35
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Originally Posted by SpamSandwich View Post

"Hey, Dan... Yeah, how ya doin'? Cool, cool. So, we need a new 10,000 word story for tomorrow. Think you can throw together another one of your usual pieces for us under the standard arrangement? We need you to make this one really clicky, so feel free to go wild. Awesome, dude. You're a real lifesaver."

I second the compliment, Daniel.  Your arguments are so carefully written that they always touch a nerve and provoke the ire of readers who can only criticize their thoroughness.  

post #7 of 35

At the moment the link from the home page of AppleInsider to this article is broken (error 404).

post #8 of 35
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Originally Posted by NormM View Post
 

At the moment the link from the home page of AppleInsider to this article is broken (error 404).

 

That's cool, I always read the articles this was as no adverts get displayed. Doing everyone a favor really.

iPad, Macbook Pro, iPhone, heck I even have iLife! :-)
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iPad, Macbook Pro, iPhone, heck I even have iLife! :-)
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post #9 of 35
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Originally Posted by Gatorguy View Post

http://www.fosspatents.com/2011/08/proof-apple-attacked-motorola-not-other.html

Timely article from AI with the new trial getting ready to start.

From your Foss link

"Chronologically, they sued first." They being Moto.

Let's not forget Moto and Samsung reneging on their SEP FRAND licenses with Infineon and Qualcomm (respectively) in regards to Apple.

The Samsung/Infineon (now Intel owned) license was partially addressed in AppleVSSamsung 1.

There is still a pending Moto/Qualcomm/Apple anti-suit in the Southern District of California (San Diego).

Even Rockstar (I'm not a fan) isn't stooping as low as Moto and Samsung, abusing FRAND SEPs.
post #10 of 35
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Originally Posted by Spacepower View Post

From your Foss link

"Chronologically, they sued first." They being Moto.

Let's not forget Moto and Samsung reneging on their SEP FRAND licenses with Infineon and Qualcomm (respectively) in regards to Apple.

The Samsung/Infineon (now Intel owned) license was partially addressed in AppleVSSamsung 1.

There is still a pending Moto/Qualcomm/Apple anti-suit in the Southern District of California (San Diego).

Even Rockstar (I'm not a fan) isn't stooping as low as Moto and Samsung, abusing FRAND SEPs.

Rockstar is in fact being sued for claims that include SEP abuse, and by several companies in a couple of different lawsuits.
http://www.scribd.com/doc/201562144/Cable-Co-s-v-Rockstar
http://www.essentialpatentblog.com/wp-content/uploads/sites/234/2014/01/Arris-v.-Rockstar-Complaint.pdf

Agree with you tho that Motorola had some questionable patent licensing tactics, particularly after Apple joined the mobile phone club . Another reason it was good for Google to buy them and put an end to new patent lawsuits.
Edited by Gatorguy - 3/27/14 at 8:37am
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post #11 of 35
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Originally Posted by winstein2010 View Post
 
Quote:
Originally Posted by Gatorguy View Post


http://www.fosspatents.com/2011/08/proof-apple-attacked-motorola-not-other.html

Timely article from AI with the new trial getting ready to start.

 

This is as much a PR war as the patent war.  It was very interesting the fact that "Motorola sued Apple in 2010 for MP3, Wifi, and GPRS patents" was conveniently omitted in many reference (including a revised Wikipedia) to make the appearance of Apple sued everyone Android.

 

Here is the reference of the original Motorola suit that was dated Oct 7, 2010, and it was before Motorola split into Mobility & Solutions in January 2011.

http://www.digitaltrends.com/mobile/motorola-sues-apple-over-18-patents/#!BBu5W

 

And ever since the iPhone came out, Apple was targeted by patent trolls:

http://tech.fortune.cnn.com/2013/08/28/apple-patent-troll-npe/

 

 

Quote:
Originally Posted by Spacepower View Post
 
Quote:
Originally Posted by Gatorguy View Post

http://www.fosspatents.com/2011/08/proof-apple-attacked-motorola-not-other.html

Timely article from AI with the new trial getting ready to start.

From your Foss link

"Chronologically, they sued first." They being Moto.

Let's not forget Moto and Samsung reneging on their SEP FRAND licenses with Infineon and Qualcomm (respectively) in regards to Apple.

The Samsung/Infineon (now Intel owned) license was partially addressed in AppleVSSamsung 1.

There is still a pending Moto/Qualcomm/Apple anti-suit in the Southern District of California (San Diego).

Even Rockstar (I'm not a fan) isn't stooping as low as Moto and Samsung, abusing FRAND SEPs.

A piece of advice, fwiw: you're wasting your time trying to have a reasonable conversation with Gatorguy.

 

He'll go on forever. He's unrelenting, unyielding, and obdurate in trying to make a case for the legitimacy of everything that Google/Android does. He'll wear you out. He's the ultimate Energizer Bunny!

post #12 of 35
Quote:
Originally Posted by Gatorguy View Post


http://www.fosspatents.com/2011/08/proof-apple-attacked-motorola-not-other.html

Timely article from AI with the new trial getting ready to start.

Here is the part which Foss did not share or did not know. He talks about who got to court first and such, what he may or may not be aware of is Motorola and Apple were in discussion long before the first suit was actually talked about or an official filing of the suit. My personal understanding of this was Motorola immediately went after Apple as soon as they introduced the Iphone. I do not know the details but it probably was a formal letter stating Motorola believes that Apple was infringing on a number of Motorola essential cell phone patents which is true and the courts have upheld this. 

 

The reason it was never settled was that Motorola was blackmailing Apple on the licensing costs of those essential patents, again this has been back up in court files that Motorola wanted apple to pay higher than FRAND. Also part of the requirements when Google bought Motorola they publicly agreed not to use the Motorola Patents to sue competitors in the cell phone industry. The reason this happen is the fact that Motorola during their discussion with Apple was attempting to force Apple to freely cross license all the Iphone patents otherwise Motorola would not agree to license the SEP. I also understand that Apple agree to pay Motorola a large sum of money to make it go away and Motorola refused unless they got the iphone patents as well. 

 

This is when it all fell apart and Apple told the EU and the FTC about what Motorola was doing when the Google purchase was announced and it all went to court. As of today Apple has yet to pay Motorola a single penny for their SEP which they are knowing using since they can not agree on the FRAND fees.

 

This is the same reason Nokia sue apple as well Apple went to market without getting any licenses ahead of time since they did not want the competitors knowing what they were up to. This is why Apple and Nokia settle quickly since they could agree on a price and Apple paid them. So Apple was not sue happy and went after everyone, everyone went after them since Apple knowingly release a product which they were required to obtain the necessary SEP and did not do for very good reasons.


Edited by Maestro64 - 3/27/14 at 7:59am
post #13 of 35

During the Apple/Samsung trial in California I read a lot of misinformed articles and comments regarding the viability of Apple's patents.  We've all heard the "Apple thinks it can patent a rectangle" narrative.  In frustration over that narrative, I wrote the following to clarify the story behind design patents and why they are important.  Hope everyone finds this interesting.

 

Apple's assertion in its lawsuits is that Samsung has copied elements of the iPhone and iPad for which Apple holds several patents.  Some of these particular patents are known as design patents.  It seems a lot of folks don't take these patents seriously and go as far as to suggest that they should not exist.  There is a good reason why they do exist, but to explain this we have to begin with a bit of a side trip and requires that we speak about trademark law.  Bear with me on this and hopefully I'll be able to clarify the purpose of design patents and provide some insights into the Apple versus Samsung trial.
 
Most people are familiar with the idea of a trademark.  By way of example, Kellogg, the cereal maker, has a trademark on Tony the Tiger and fought a battle with Exxon over Kellogs' claim that the use of an unnamed tiger in Exxon's advertising violates Kellogg's trademark for Tony the Tiger.  Why?  For 30 years, Exxon used its tiger character exclusively to promote its gasoline blend, but then, in the 1990's began using it to sell food. Kellogg said consumers are confused by the similarity between the cartoon tigers and may conclude that Kellogg is somehow behind soda, coffee and other items for sale at Exxon's TigerMart stores.  The case went back and forth for several years, with Exxon initially winning the case, but ultimately losing on appeal.  This case would not seem extraordinary to most people as most folks understand the concept of protecting a unique trademark like Kellogg's Tony the Tiger character.
 
 
Now let's look at another case, one that comes closer to the Apple vs Samsung case, but still an application of trademark law.  This case is Ferrari vs Robert's Replicas.  Back in the 1980's Robert's Replica's was in the business of manufacturing fiberglass kits that replicated the exterior features of Ferrari's Daytona Spyder and Testarossa automobiles. Roberts' copies were called the Miami Spyder and the Miami Coupe, respectively.  Ferrari brought suit against Roberts in March 1988 alleging trademark infringement. 
 
Here's what this case was about:  After Ferrari vehicles have been on the market for a number of years, the design of those vehicles acquires what's called "secondary meaning", a concept at the heart of trademark law.  Secondary meaning refers to an association of a design, like the design of a Ferrari vehicle, with quality and craftsmanship or other positive attributes one might associate with the Ferrari brand.  After a design has acquired secondary meaning, trademark law can be applied to protect the company from those who would copy its designs and use them to promote their own products.  Robert's copying of Ferrari's iconic designs could confuse the public and dilute the strength of Ferrari's brand.  Just the presence of large numbers of replicas would dilute Ferrari's image of exclusivity, causing financial harm to Ferrari.  Trademark law, under the concept of secondary meaning, protected Ferrari.  The courts ruled in favor of Ferrari in this case and enjoined Roberts from producing the Miami Spyder and the Miami Coupe.
 
But how does this relate to design patent law? 
 
The problem with using trademark law to protect a company's designs (under trademark law a product design or package design is referred to as "trade dress") is that a product has to be on the market for a long time before its design acquires secondary meaning (i.e. before the design becomes iconic and is seen by consumers as representative of the company behind the product). When competitors come in immediately after a new product design is introduced and copy it, as is the assertion in the Apple vs Samsung case, the originator of the design doesn't have the luxury of time needed for its product design to acquire secondary meaning in the eyes of consumers.  Consumers immediately see the same design from multiple companies and so don't grow to associate the design with the company that originated that design.
 
This is where design patents come in. Where trademark protection of an iconic product design has no expiration, it takes time for a new product to acquire that protection (as stated above). A design patent offers immediate protection of a new and novel design and for a period of 14 years thereafter, giving a company protection of its original designs until they acquire secondary meaning in the market and therefore protection under trademark law. So the design patent serves a valuable function for companies like Ferrari, and Apple.
 
I don't care about what the ignorant masses perceive as truth. I'm concerned with the facts on the ground.
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post #14 of 35
Quote:
Originally Posted by anantksundaram View Post


A piece of advice, fwiw: you're wasting your time trying to have a reasonable conversation with Gatorguy.

He'll go on forever. He's unrelenting, unyielding, and obdurate in trying to make a case for the legitimacy of everything that Google/Android does. He'll wear you out. He's the ultimate Energizer Bunny!

I've had conversations with Spacepower before. I've always found him to be well-versed, polite, intelligent and quite capable of carrying on a good debate without relying on insults. Others here sometimes stoop to juvenile name-calling or character attacks just to avoid looking like they've lost an argument. I can't recall Spacepower needing to do that, perhaps because he doesn't mind doing research on what he's discussing or discovering something he didn't know?
Edited by Gatorguy - 3/27/14 at 8:31am
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post #15 of 35
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Originally Posted by Gatorguy View Post

I've had conversations with Spacepower before. I've always found him to be well-versed, polite, intelligent and quite capable of carrying on a good debate without relying on insults. Others here sometimes stoop to juvenile name-calling or character attacks just to avoid looking like they've lost an argument. I can't recall Spacepower needing to do that, perhaps because he doesn't mind doing research on what he's discussing or discovering something he didn't know?
i've always found GatorGuy to at least be entertaining in his posts and always providing an enjoyable read.
post #16 of 35
Quote:
Originally Posted by RadarTheKat View Post
 

During the Apple/Samsung trial in California I read a lot of misinformed articles and comments regarding the viability of Apple's patents.  We've all heard the "Apple thinks it can patent a rectangle" narrative.  In frustration over that narrative, I wrote the following to clarify the story behind design patents and why they are important.  Hope everyone finds this interesting.

 

<SNIP>
 
The problem with using trademark law to protect a company's designs (under trademark law a product design or package design is referred to as "trade dress") is that a product has to be on the market for a long time before its design acquires secondary meaning (i.e. before the design becomes iconic and is seen by consumers as representative of the company behind the product). When competitors come in immediately after a new product design is introduced and copy it, as is the assertion in the Apple vs Samsung case, the originator of the design doesn't have the luxury of time needed for its product design to acquire secondary meaning in the eyes of consumers.  Consumers immediately see the same design from multiple companies and so don't grow to associate the design with the company that originated that design.
 
This is where design patents come in. Where trademark protection of an iconic product design has no expiration, it takes time for a new product to acquire that protection (as stated above). A design patent offers immediate protection of a new and novel design and for a period of 14 years thereafter, giving a company protection of its original designs until they acquire secondary meaning in the market and therefore protection under trademark law. So the design patent serves a valuable function for companies like Ferrari, and Apple.
 

Good summary and many points people do not understand about patent, trademarks and trade dress as well as Branding which is all the things Apple is attempting to protect since people when they buy associate with, and you can not have a junk knock off destroying.

 

I believe Motorola also attempted to go after companies for the use of a flip open phone design since they obviously modeled after Star Trek, but was the first cell phone company to popularize the design from the early 90's to the Razr, can not remember if they were successful in their pursue due to the prior artwork.

post #17 of 35
Where will the haters get their biased information when the Samsung/Apple trial starts?

That coward PJ shut down Groklaw, so who's left? Going to be interesting to see comments this time around since there won't be someones opinion that can be copied/pasted to show Apple in a bad light while sounding "all legal and expert like."
post #18 of 35
Another great read; thanks DED. It's nice to have the timeline and circumstances of the patent wars set down in such a concise fashion. As to why the media gets it wrong, I'm sure it is directly related to samsung's $14B marketing budget.

   

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post #19 of 35
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Originally Posted by Lord Amhran View Post

i've always found GatorGuy to at least be entertaining in his posts and always providing an enjoyable read.

While that may be true, sometimes, he is still a troll, with a specific goal, which involves defending anything google does, regardless of truth. In addition, his sheepish "woe is me, golly gee guys, I'm just trying to set the record straight is all" tact is tiresome.

   

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post #20 of 35
Quote:
Originally Posted by PatchyThePirate View Post

While that may be true, sometimes, he is still a troll, with a specific goal, which involves defending anything google does, regardless of truth. In addition, his sheepish "woe is me, golly gee guys, I'm just trying to set the record straight is all" tact is tiresome.

You only see what you want to see apparently. Just yesterday I accused Google of doing evil in a post here at AI. Not the first time I've criticized them either.
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post #21 of 35
Quote:
Originally Posted by Gatorguy View Post

Rockstar is in fact being sued for claims that include SEP abuse, and by several companies in a couple of different lawsuits.
http://www.scribd.com/doc/201562144/Cable-Co-s-v-Rockstar
http://www.essentialpatentblog.com/wp-content/uploads/sites/234/2014/01/Arris-v.-Rockstar-Complaint.pdf

Agree with you tho that Motorola had some questionable patent licensing tactics, particularly after Apple joined the mobile phone club . Another reason it was good for Google to buy them and put an end to new patent lawsuits.

Ah yes, Google is our hero. /s

Again, I will always bring it up but weren't they two separate companies so how can Googs have sway on some things but not others? 1smile.gif
Quote:
Originally Posted by PatchyThePirate View Post

While that may be true, sometimes, he is still a troll, with a specific goal, which involves defending anything google does, regardless of truth. In addition, his sheepish "woe is me, golly gee guys, I'm just trying to set the record straight is all" tact is tiresome.

GG isn't a troll. A troll derails a discussion or says thing that are completely false just to get a response. A troll also whines about the same thing over and over. To my knowledge, GG has done none of that. He's a bit of a Google defender but whatever.
post #22 of 35
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Originally Posted by EricTheHalfBee View Post

Where will the haters get their biased information when the Samsung/Apple trial starts?

That coward PJ shut down Groklaw, so who's left? Going to be interesting to see comments this time around since there won't be someones opinion that can be copied/pasted to show Apple in a bad light while sounding "all legal and expert like."

Don't count Florian Mueller out just yet. He's been taking a much less-friendly Apple stance lately.
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post #23 of 35
Quote:
Originally Posted by Gatorguy View Post


Don't count Florian Mueller out just yet. He's been taking a much less-friendly Apple stance lately.

 

Or you could just say that he calls it like he sees it. If he sees Apple do something he doesn't agree with he says so. It just happens he agrees with Apple/MS/Oracle far more often than he does with Google/Motorola/Samsung.

post #24 of 35
Quote:
Originally Posted by EricTheHalfBee View Post

Or you could just say that he calls it like he sees it. If he sees Apple do something he doesn't agree with he says so. It just happens he agrees with Apple/MS/Oracle far more often than he does with Google/Motorola/Samsung.

In the prelim to the upcoming Apple/Samsung trial Mueller (FOSSPatents) already opined that Apple has lost their mind when it comes to what they argue to be the value of their patents. That's why I bring him up. He may not be nearly as friendly to Apple's position this go round as he was with the last but who knows until the trial gets underway.
Edited by Gatorguy - 3/27/14 at 10:56am
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post #25 of 35
Quote:
Originally Posted by Gatorguy View Post

You only see what you want to see apparently. Just yesterday I accused Google of doing evil in a post here at AI. Not the first time I've criticized them either.

Fair enough. I'm on here pretty often, but I don't catch everything that's said. That said, you do post here a lot, and after reading your posts it's hard for me to believe your obvious bias for google does not significantly influence your judgment.
Quote:
Originally Posted by jungmark View Post


GG isn't a troll. A troll derails a discussion or says thing that are completely false just to get a response. A troll also whines about the same thing over and over. To my knowledge, GG has done none of that. He's a bit of a Google defender but whatever.

"Troll" is a pretty loaded word, so I guess it depends on your definition. I'm using the broad definition of someone with a specific agenda beyond the scope of any specific topic, who uses spin or other means (lies, antagonism, etc.) to pursue this agenda. To GGs credit, I would put him in the former camp. Maybe you're right, maybe "troll" should be reserved for those who truly contribute nothing to the conversation. GG does post interesting things that I've learned from. Anyway, I'm not trying to make a big deal out of it; it is what it is. Cheers.

   

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post #26 of 35
This might seem pedantic, but AI articles these days are littered with grammatical errors and typos. Doesn't anybody check these stories? Aside from that, it was an interesting read.
post #27 of 35
Quote:
Originally Posted by Gatorguy View Post

Rockstar is in fact being sued for claims that include SEP abuse, and by several companies in a couple of different lawsuits.
http://www.scribd.com/doc/201562144/Cable-Co-s-v-Rockstar
http://www.essentialpatentblog.com/wp-content/uploads/sites/234/2014/01/Arris-v.-Rockstar-Complaint.pdf

Agree with you tho that Motorola had some questionable patent licensing tactics, particularly after Apple joined the mobile phone club . Another reason it was good for Google to buy them and put an end to new patent lawsuits.

I wasn't clear, I meant Rockstar joining the smartphone wars, with their LTE SEPs.

I think Google should have withdrawn the wireless SEPs in the US, like they did in the EU.

I read that scribd lawsuit. It's interesting, but in the 44 pages, there is only one direct connection of Nortel to a license/Letter of Assurance (LOA) to the EITF. Unfortunately that letter wasn't included in the PDF. There a lot of allegations of reneging on licenses, but the lawsuit can only specify one LOA in 44 pages.
IIRC, the IEEE doesn't do any licensing and doesn't/hasn't taken a position on the matter.

Thanks for the links, I'll check out that other one later.
post #28 of 35
Quote:
Originally Posted by Gatorguy View Post

In the prelim to the upcoming Apple/Samsung trial Mueller (FOSSPatents) already opined that Apple has lost their mind when it comes to what they argue to be the value of their patents. That's why I bring him up. He may not be nearly as friendly to Apple's position this go round as he was with the last but who knows until the trial gets underway.

I found it funny, one of his recent posts, Book Review of a book that he didn't read except the parts that referred to himself. Then he ranted about some Apple employee as a neighbor, and some lawsuit.

I've always taken Mueller with a grain of salt, same with the Groklaw crowd. People see what they want to see

I do think that sometimes Mueller is disingenuous.

Anyway, GG, I read that second PDF that you listed. It's interesting too, but the LOAs aren't available either.

I wish the world would settle on what FRAND really is, the only US starting point so far was MSvsMoto in Washington state.
post #29 of 35
Quote:
Originally Posted by SpamSandwich View Post

"Hey, Dan... Yeah, how ya doin'? Cool, cool. So, we need a new 10,000 word story for tomorrow. Think you can throw together another one of your usual pieces for us under the standard arrangement? We need you to make this one really clicky, so feel free to go wild. Awesome, dude. You're a real lifesaver."

 

I generally enjoy your posts, but I cannot understand your contempt/ irritation with DED. Best to ignore if you don't like it right?

post #30 of 35
Quote:
Originally Posted by RadarTheKat View Post

During the Apple/Samsung trial in California I read a lot of misinformed articles and comments regarding the viability of Apple's patents.  We've all heard the "Apple thinks it can patent a rectangle" narrative.  In frustration over that narrative, I wrote the following to clarify the story behind design patents and why they are important.  Hope everyone finds this interesting.


Apple's assertion in its lawsuits is that Samsung has copied elements of the iPhone and iPad for which Apple holds several patents.  Some of these particular patents are known as design patents.  It seems a lot of folks don't take these patents seriously and go as far as to suggest that they should not exist.  There is a good reason why they do exist, but to explain this we have to begin with a bit of a side trip and requires that we speak about trademark law.  Bear with me on this and hopefully I'll be able to clarify the purpose of design patents and provide some insights into the Apple versus Samsung trial.
 
Most people are familiar with the idea of a trademark.  By way of example, Kellogg, the cereal maker, has a trademark on Tony the Tiger and fought a battle with Exxon over Kellogs' claim that the use of an unnamed tiger in Exxon's advertising violates Kellogg's trademark for Tony the Tiger.  Why?  For 30 years, Exxon used its tiger character exclusively to promote its gasoline blend, but then, in the 1990's began using it to sell food. Kellogg said consumers are confused by the similarity between the cartoon tigers and may conclude that Kellogg is somehow behind soda, coffee and other items for sale at Exxon's TigerMart stores.  The case went back and forth for several years, with Exxon initially winning the case, but ultimately losing on appeal.  This case would not seem extraordinary to most people as most folks understand the concept of protecting a unique trademark like Kellogg's Tony the Tiger character.
 
 
Now let's look at another case, one that comes closer to the Apple vs Samsung case, but still an application of trademark law.  This case is Ferrari vs Robert's Replicas.  Back in the 1980's Robert's Replica's was in the business of manufacturing fiberglass kits that replicated the exterior features of Ferrari's Daytona Spyder and Testarossa automobiles. Roberts' copies were called the Miami Spyder and the Miami Coupe, respectively.  Ferrari brought suit against Roberts in March 1988 alleging trademark infringement. 
 
Here's what this case was about:  After Ferrari vehicles have been on the market for a number of years, the design of those vehicles acquires what's called "secondary meaning", a concept at the heart of trademark law.  Secondary meaning refers to an association of a design, like the design of a Ferrari vehicle, with quality and craftsmanship or other positive attributes one might associate with the Ferrari brand.  After a design has acquired secondary meaning, trademark law can be applied to protect the company from those who would copy its designs and use them to promote their own products.  Robert's copying of Ferrari's iconic designs could confuse the public and dilute the strength of Ferrari's brand.  Just the presence of large numbers of replicas would dilute Ferrari's image of exclusivity, causing financial harm to Ferrari.  Trademark law, under the concept of secondary meaning, protected Ferrari.  The courts ruled in favor of Ferrari in this case and enjoined Roberts from producing the Miami Spyder and the Miami Coupe.
 
But how does this relate to design patent law? 
 
The problem with using trademark law to protect a company's designs (under trademark law a product design or package design is referred to as "trade dress") is that a product has to be on the market for a long time before its design acquires secondary meaning (i.e. before the design becomes iconic and is seen by consumers as representative of the company behind the product). When competitors come in immediately after a new product design is introduced and copy it, as is the assertion in the Apple vs Samsung case, the originator of the design doesn't have the luxury of time needed for its product design to acquire secondary meaning in the eyes of consumers.  Consumers immediately see the same design from multiple companies and so don't grow to associate the design with the company that originated that design.
 
This is where design patents come in. Where trademark protection of an iconic product design has no expiration, it takes time for a new product to acquire that protection (as stated above). A design patent offers immediate protection of a new and novel design and for a period of 14 years thereafter, giving a company protection of its original designs until they acquire secondary meaning in the market and therefore protection under trademark law. So the design patent serves a valuable function for companies like Ferrari, and Apple.
 

Good explanation, thanks. Well done.
post #31 of 35
Quote:
Originally Posted by Roly View Post

This might seem pedantic, but AI articles, these days, are littered with grammatical errors and typos. Doesn't anybody check these stories? Aside from that, it was an interesting read.

Missing commas added for you.
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"If the young are not initiated into the village, they will burn it down just to feel its warmth."
- African proverb
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post #32 of 35
General conclusion about all those who continue writing their tedious posts about the never-ending patent fights. You all have pale skin and pasty complexions from spending too many hours hunched over your keyboards. Take a walk. Get some fresh air and sunlight. Go out and play this weekend!

I admit to being a Fanatical Moderate. I Disdain the Inane. Vyizderzominymororzizazizdenderizorziz?

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post #33 of 35
Quote:
Originally Posted by Benjamin Frost View Post

Missing commas added for you.
Great, thanks. However, I'm not writing articles for public consumption (not here anyway) that require proof-reading.
post #34 of 35
Quote:
Originally Posted by EricTheHalfBee View Post

Where will the haters get their biased information when the Samsung/Apple trial starts?

That coward PJ shut down Groklaw, so who's left? Going to be interesting to see comments this time around since there won't be someones opinion that can be copied/pasted to show Apple in a bad light while sounding "all legal and expert like."

Quote:
Originally Posted by Gatorguy View Post

Don't count Florian Mueller out just yet. He's been taking a much less-friendly Apple stance lately.

Quote:
Originally Posted by EricTheHalfBee View Post

Or you could just say that he calls it like he sees it. If he sees Apple do something he doesn't agree with he says so. It just happens he agrees with Apple/MS/Oracle far more often than he does with Google/Motorola/Samsung.

Quote:
Originally Posted by Gatorguy View Post

In the prelim to the upcoming Apple/Samsung trial Mueller (FOSSPatents) already opined that Apple has lost their mind when it comes to what they argue to be the value of their patents. That's why I bring him up. He may not be nearly as friendly to Apple's position this go round as he was with the last but who knows until the trial gets underway.

In a blog post today Florian looks to be sympathizing with Samsung, just as I suspected he might.

"I wasn't going to comment on the new Apple v. Samsung trial until after the parties' opening argument, but I've changed plans because Judge Koh made a decision I really wouldn't have expected. That decision, all by itself, could easily give rise to a retrial. (I see a fairly high likelihood of a post-appeal retrial anyway when I compare the damages theories allowed by Judge Koh to what the highest-ranking U.S. patent judge, Chief Judge Randall Rader of the United States Court of Appeals for the Federal Circuit, said on September 11, 2013 about a Motorola damages claim against Apple. In that case, the Chief Judge found a damages claim of $300 million over "one patent in a crowded field" downright "crazy"; at the trial starting later today, Apple is apparently seeking $2 billion over five patents, i.e., an average of $400 million for each patent in a crowded field.)"

This decision marks a surprising departure from Judge Koh's previously consistent efforts to ensure a level playing field for Samsung in Apple's home court. . . I thought it would have been a no-brainer for her to just simply use the same video as at the summer 2012 trial instead of one that is, in some parts, like a propaganda video for Apple's innovative capacity. . . I think the video overstates Apple's contributions to innovation."

"Unlike Apple, I have been consistent over the years on issues like this. In May 2012 Apple indicated in a court filing that it would ask the court to obscure the Samsung logo on monitors in the courthouse because it could be prejudicial to Apple, and this is what I wrote back then:

"At first sight, this may seem very funny, but I actually understand why Apple would make this request: at a conscious level, it can show to jurors that Samsung actually contributes technology to the U.S. government, and at a subconscious level, it creates the impression of the court being Samsung territory."

I now support Samsung for the same reasons for which I supported Apple then. I find Judge Koh's decision very troubling."

Eric, is Florian simply calling it like he sees it?
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post #35 of 35
Quote:
Originally Posted by Kibitzer View Post

General conclusion about all those who continue writing their tedious posts about the never-ending patent fights. You all have pale skin and pasty complexions from spending too many hours hunched over your keyboards. Take a walk. Get some fresh air and sunlight. Go out and play this weekend!

Haha! I wrote the longest comment on this article. I live in Boca Raton, FL and went for a 20 mile bike ride to the beach and back this afternoon. No pasty skin here.
I don't care about what the ignorant masses perceive as truth. I'm concerned with the facts on the ground.
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I don't care about what the ignorant masses perceive as truth. I'm concerned with the facts on the ground.
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