Florian Mueller backs Samsung legal strategy of trivializing Apple's technology

Posted:
in iPhone edited May 2014
A prominent patent law blogger has again raised the argument that Apple's patented features have very little value, while stopping short of saying that Samsung should just stop using the infringing technology.

Samsung cost to copy Apple too high

Repeating an opinion from early March, FOSS Patents blogger Florian Mueller has again railed against Apple's demands for patent royalty claims against Samsung writing that he was "not just disappointed but even angry" about the amount Apple was asking.

The five iPhone technology patents that Apple selected to use in its second U.S. trial, including Slide to Unlock and Apple Data Detectors (also known as Quick Links), accuse a series of Samsung products in differing respects (as outlined in the above chart).

Apple's second Samsung trial, initiated back in 2011, does not include recent Samsung models like the company's flagship Galaxy S4 released last spring. While Apple attempted to add the model last May, Judge Paul Grewal ruled last June that "allowing Apple to add the Galaxy S4 would also violate U.S. District Judge Lucy Koh's request that the case be streamlined and that the number of products and patents at issue in the litigation be reduced."

Apple patent claims vs Samsung's

Applying Apple's proposed royalty rate to a Samsung device that infringed all five patents would amount to around $40, a figure Mueller contrasted with Samsung's "SEP royalty demand of approximately $12 per device (for a whole portfolio of wireless SEPs)."

However, Samsung's SEP (Standards Essential Patent) suit against Apple at the International Trade Commission actually demanded around $16 to $18 per accused iPhone, and that related to just a single patent: 7,362,867, one that had already been thrown out by Judge Koh the previous year as obviously not infringed by Apple.

Samsung had calculated its roughly $16 demand per iPhone by claiming that it was owed around 2.7 percent of the entire cost of the iPhone for a patent that had already been licensed by Infineon, the maker of the accused $11.72 baseband chip that Apple had been using in its products.

Mueller is aware of this because he reported at the time that Samsung's SEP claim related to "trivial functionality" within the chip's implemention of the 3G UMTS wireless standard, and that "the accused portion of the UMTS standard accounts for about 0.0000375% of that standard. [...] And Samsung only contributed to a portion of that 0.0000375%."

Mueller is now comparing Samsung's "trivial" SEP demand for one patent against Apple's total demands for five patents covering features Samsung didn't just accidentally run afoul of, but rather purposely pulled from its Copy Cat iPhone studies as features it needed in its own products in order to be competitive with Apple's iPhone.

Slide to Unlock


Apple Data Detectors


And despite all that, Apple is asking for less per patent (an average of $8) than Samsung was demanding for its FRAND licensed, standard essential baseband patent involving a chip that cost less to buy than Samsung's $16 royalty demand. It's not a mystery why the ITC case was vetoed by President Obama: Samsung's outrageous demand involved some of the worst patent abuse one could imagine.

Sauce for the gander

Apple argued to the ITC that Samsung shouldn't be able to demand more for patent royalties than the baseband chip was even sold for. Mueller says this same sort of reasoning should also apply to Apple, stating "what's good for the goose is good for the gander."

Because four of the five patents Apple is arguing relate to Google's Android, Mueller wrote, "I'm unaware of any explanation by Apple of why the total cost of patent licenses relating to Android should not be limited to a percentage of the contribution that Android makes to the market value of a smartphone or tablet computer."

In other words, the royalty base of Samsung's infringing patents should be tied to the value of Android, and, as Mueller next points out, "mobile operating systems do not account for sky-high percentages of the entire market value of a smartphone or tablet computer."

Android licensees, however, see significant value in Android or they'd still be using platforms like Symbian, PalmOS and Windows Mobile. Android phones sell in the market because they look and work much more like the iPhone than those previous mobile OSs that nobody uses anymore, or new alternatives like Windows Phone.

Mueller also noted that after suffering unfortunate screen damage, replacing the screen of his Samsung Note 2 phablet cost him around $400, which he called "one of various indications of the non-operating-system components of the total cost and market value of a smartphone."

However, an entirely new Samsung Note 2 unlocked on Amazon lists for less than $415. Apple's in-store screen replacement for an iPhone 5s costs $149. So Mueller's very expensive screen replacement really just indicates that Samsung doesn't offer affordable screen replacement for its customers.

Apple's demands relative to Apple's own patent costs

Mueller wrote that his piece was intended to "raise a question and to highlight some key facts in this context, not to give a definitive answer on a highly complex issue."

However, there are other patent comparisons we can use to evaluate the relative merits of Apple's damages claim. Last year, Apple was hit with a $368 million patent verdict related to a claim from VirnetX involving VPN connectivity. VirnetX does not practice its technology, it merely sues companies for money. VirnetX's patent was filed in 2007 and actually granted just days before the company rushed it into court against Apple.

The cases are different in significant ways: Apple hadn't dissected VirnetX's VPN technology in a shipping product or documented how it set out to steal it in a competitive Copy Cat report (a Samsung practice Mueller calls "benchmarking"). Instead, Apple internally developed a variety of products, including FaceTime and the VPN on Demand feature of iOS 6, and VirnetX came after it with broad patent claims that describe how VPNs can work, patents that were granted long after Apple developed its own technology.

VirnetX convinced a judge to force Apple to change how its products work and pay the Non-Practicing Entity $368 million for infringement of the single patent. After winning, VirnetX filed a second suit that adds all of Apple's latest products to a new claim.

VirnetX just won a $368 million damages award against Apple and immediately filed a suit over same patents against iPhone 5 and iPad mini.

-- Florian Mueller (@FOSSpatents)


VirnetX filed its original claim shortly after Apple filed its second suit against Samsung, but the judge involved was able to fast track the case to completion before the end of 2012 without scaling back either the number of products VirnetX could accuse or the patent claims it was allowed to bring.

There has been no significant public scrutiny of VirnetX's claims, no anonymous defense from the open source community seeking to invalidate its nebulous ownership claims related to VPN, no clownish liveblogging of the trial and, while Mueller tweeted the verdict, he didn't appear to have blogged any outrage over the damages figure VirnetX was awarded.

Rather than Apple's patent claim being unreasonably high in comparison to other patent cases of less obvious value, Apple is asking half what Samsung demanded (under a threat of an ITC import ban) per patent, or roughly the same total amount per patent across the range of accused devices as VirnetX's patent.
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Comments

  • Reply 1 of 88
    slurpyslurpy Posts: 5,317member
    Of course he holds that view. Florian Mueller has been an anti-Apple troll for a long time. Yeah, he seems to know what he's talking about, but he's always skewed against Apple, and supports whoever is attacking Apple, while trivializing Apple's arguments. It's not a coincidence.

    What the **** is the point of developing anything anymore, if everything has "little value"? Amazing how every smartphone in existence now has followed the iPhone template, which I guess had "little value" to begin with, right?
  • Reply 2 of 88
    freerangefreerange Posts: 1,594member
    It says a lot that Florian Mueller is using a Samsung Note 2. Who is this little shit anyway?
  • Reply 3 of 88
    Quote:

    Originally Posted by Slurpy View Post



    Of course he holds that view. Florian Mueller has been an anti-Apple troll for a long time. Yeah, he seems to know what he's talking about, but he's always skewed against Apple, and supports whoever is attacking Apple, while trivializing Apple's arguments. It's not a coincidence.

     

    I thought that numerous AI articles in the past have heralded him as a legal genius for coming down on Apple's side of the patent trials.  Does my memory fail me?

  • Reply 4 of 88
    froodfrood Posts: 771member
    Quote:

    Originally Posted by wakefinance View Post

     

     

    I thought that numerous AI articles in the past have heralded him as a legal genius for coming down on Apple's side of the patent trials.  Does my memory fail me?


     

    Florian and FOSS are usually skewed very pro Apple.  Here at AI you're only as good as your latest decision.  For reference see the posts on Judge Koh on any given day if she's made a decision pro Apple (best judge ever!, YAY!) or against Apple (obvious Korean plant, totally incompetent, BOO!).

     

    Attentions AI'rs, Florian Mueller said something bad about Apple.  He is now the enemy.  Attack.

     

    Apple's patents seem to be one step removed from 'touching a screen, to make something happen- on a mobile device'  so I'm not a huge fan of them.

     

    The patent system needs a complete rework, it wasn't designed in, and is very inept, to handle the modern era.

  • Reply 5 of 88
    radarthekatradarthekat Posts: 3,395moderator
    I read these Mueller posts and he makes some valid points. However, he clearly shows his bias when he says it took him a single second to make up his mind about the $40 Apple is demanding. Had he considered the matter a few extra seconds he might have entertained the notion that Apple's $40 per unit demand is more a strategy to force Samsung to invent its own stuff than to actually net $40 in royalties. Apple set the price sufficiently high to ensure Samsung would reject that amount (remember, the amount was demanded during pre-trial arbitration).
  • Reply 6 of 88
    Mueller arguments (and Samsung's actions) are self-contradicting... If the ideas covered by Apple's patents have so little value, then why didn't Samsung stop implementing them long ago? Samsung's actions are the best evidence that Apple's patents do, in fact, have intrinsic value, and the evidentary record is replete with the opinions of Samsung executives that the features were important to copy...

    Mueller should share his opinions with the U.S. Patent office, if he thinks Apple's ideas are inherently not patentable... But as long as Apple hold patents, they have every right to pursue compensation from those who copy them and/or cease-and-desist orders...
  • Reply 7 of 88
    droidftwdroidftw Posts: 1,009member
    Quote:

    Originally Posted by wakefinance View Post

     

    I thought that numerous AI articles in the past have heralded him as a legal genius for coming down on Apple's side of the patent trials.  Does my memory fail me?


     

    You're correct, but Mueller's tone has changed rather significantly with Apple's latest lawsuit against Samsung.  Now he must face the wrath of the mighty DED.  <img class=" src="http://forums-files.appleinsider.com/images/smilies//lol.gif" />

  • Reply 8 of 88
    Mueller's tone changed when he was SUED FOR SPYING ON AN APPLE EMPLOYEE. Guilty or not he is pissed and has lost all credibility on Apple issues.
  • Reply 9 of 88
    Dan_DilgerDan_Dilger Posts: 1,583member
    Quote:

    Originally Posted by Frood View Post

     

     

    Florian and FOSS are usually skewed very pro Apple.  Here at AI you're only as good as your latest decision.  For reference see the posts on Judge Koh on any given day if she's made a decision pro Apple (best judge ever!, YAY!) or against Apple (obvious Korean plant, totally incompetent, BOO!).

     

    Attentions AI'rs, Florian Mueller said something bad about Apple.  He is now the enemy.  Attack.

     

    Apple's patents seem to be one step removed from 'touching a screen, to make something happen- on a mobile device'  so I'm not a huge fan of them.

     

    The patent system needs a complete rework, it wasn't designed in, and is very inept, to handle the modern era.


     

    Florian isn’t the enemy and he isn’t being attacked. He simply posted a lot of opinions that are of questionable logic, and here he’s being questioned on them. 

     

    You don’t know anything about patents. 

  • Reply 10 of 88
    Stopped following foss January 1st
    when his new contract kicked in.

    Not interested in reading about him here
    any more than I am about discussing groklaw goofiness.
  • Reply 11 of 88
    gatorguygatorguy Posts: 23,175member
    frank pope wrote: »
    Stopped following foss January 1st
    when his new contract kicked in.

    Not interested in reading about him here
    any more than I am about discussing groklaw goofiness.

    I think it's more likely his old contract expired. His current opinions are much more in keeping with his old patent battles in Europe. Holding hands with the very company he demonized for years, Microsoft, and taking a decidedly pro-software patent position never jived with his prior history.

    That doesn't necessarily mean he hasn't found a new client. I've often thought his opinions over the past couple of years to be intended for support of someone else's agenda so maybe nothing has changed other than the clientele.
  • Reply 12 of 88
    cpsrocpsro Posts: 2,896member
    Quote:

    Originally Posted by Slurpy View Post



    Of course he holds that view. Florian Mueller has been an anti-Apple troll for a long time.

    Au contraire, Mueller has historically been pro-Apple and recently became anti-Apple, pro-Samsung and a developer of Android apps. He used to make sense but his recent writings completely distort the legal situation, as indicated here on AI. He claims to have no equity interest in Apple, Google or Samsung, but there are many ways to have a conflict of interest; IMHO he is not being forthcoming about a conflict. To change one's opinion about Apple's ability to have success in the courts is one thing, but to suddenly misrepresent Apple's and Samsung's cases is entirely another matter.

  • Reply 13 of 88
    jungmarkjungmark Posts: 6,870member
    I wonder if Sammy's marketing cash found its way to Mueller.
  • Reply 14 of 88
    cpsrocpsro Posts: 2,896member
    Quote:

    Originally Posted by jungmark View Post



    I wonder if Sammy's marketing cash found its way to Mueller.

    It's found its way to all of the major news media.

  • Reply 15 of 88
    ksecksec Posts: 1,567member
    To me, the patents are more like a tools used against Samsung more then having any actual value itself.

    May be those patents are really useless, or may be they are generic.

    But there should be no disagreement that Samsung Copied Apple, from design to trade dress. And many other little things and details. But these are hard to argue, and sometimes experience ,"trade dress" design are hard to explain and put into context infront of court.

    Hence why these patents are used.

    Now not only did Samsung not bring any concrete evidence of NOT copying, ( actually most evidence they present even suggest they do ) they decided to go on the offense and sue Apple with Standard Essential Patents.
  • Reply 16 of 88
    esoomesoom Posts: 155member

    Usually he's been fairly pro Apple, I noticed a change in the recent case, I've disagreed with almost everything he's been posting about the case, nice to see others have noticed it too.

     

    Who's his new contract with?

     

    Love his tweets tonight, claiming a 1.5 year old phone screen should cost $400 to replace, I literally laughed at that.

  • Reply 17 of 88
    Quote:

    Originally Posted by Frood View Post

     

     

    Florian and FOSS are usually skewed very pro Apple.  Here at AI you're only as good as your latest decision.  For reference see the posts on Judge Koh on any given day if she's made a decision pro Apple (best judge ever!, YAY!) or against Apple (obvious Korean plant, totally incompetent, BOO!).

     

    Attentions AI'rs, Florian Mueller said something bad about Apple.  He is now the enemy.  Attack.

     

    Apple's patents seem to be one step removed from 'touching a screen, to make something happen- on a mobile device'  so I'm not a huge fan of them.

     

    The patent system needs a complete rework, it wasn't designed in, and is very inept, to handle the modern era.


     

    He wasn't skewed pro-Apple - he was skewed pro-truth. Lately he's been critical of Apple, and I'm not really sure why. I'll reserve judgment for when the trial is over and to hear what his opinions of the verdict are.

     

    As to claiming AI "you're only as good as your last decision", that's actually reserved for the Android users/Apple haters on all tech blogs following this. To imply otherwise is to ignore facts (sort of like Android users saying something like "if Apple users stop trolling Android articles, then we'll stop trolling Apple articles" when the numbers show that it's the Android users/Apple haters who comprise the largest number of troll posts worldwide.

     

    And Corrections is right - you obviously know nothing about patents.

  • Reply 18 of 88
    Quote:

    Originally Posted by Cpsro View Post

     

    Au contraire, Mueller has historically been pro-Apple and recently became anti-Apple, pro-Samsung and a developer of Android apps.


     

    He has mentioned that he's developing an Android App. I can only conclude that it's probably an App for a certain demographic where Android is the dominant platform (perhaps something for his home country of Germany).

     

    No App developer wanting to reach the widest possible audience of revenue generating customers would ever choose Android first (or choose to be Android exclusive).

  • Reply 19 of 88
    droidftwdroidftw Posts: 1,009member
    Quote:

    Originally Posted by EricTheHalfBee View Post



    the numbers show that it's the Android users/Apple haters who comprise the largest number of troll posts worldwide.

     

    Which numbers?  Care to share your source?

  • Reply 20 of 88
    Quote:

    Originally Posted by Ken_sanders_aia View Post



    Mueller arguments (and Samsung's actions) are self-contradicting... If the ideas covered by Apple's patents have so little value, then why didn't Samsung stop implementing them long ago? Samsung's actions are the best evidence that Apple's patents do, in fact, have intrinsic value, and the evidentary record is replete with the opinions of Samsung executives that the features were important to copy...

     

    This is a key point. Why spend so much $$$ in court fighting over a feature that's "worthless"?

     

    As we've seen with Slide-To-Unlock and Samsung's own internal user testing, it's far from useless. In fact, it was the best method  out of all the ones they tried.

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