08.27.12

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Apple Has Woken Up Opposition to Software Patents, Itself

Posted in Apple at 11:20 am by Dr. Roy Schestowitz

Anti-Android camp cheers while the public boos

Summary: The decision in the high-profile case against Android leads to immense opposition not just to Apple but patents as well

THIS weekend brought out some initial feedback on the Apple vs. Samsung case. Friends of mine told me about it and at least one convinced his company not to buy anything from Apple (as the company had planned to), going of course for Android, instead. Apple is going to get a massive backlash for this. People at the Health Club this morning (it’s Bank Holiday) are talking about it; they really start to ‘get’ the problem with patents. It enables people like myself to show them how customers are affected (cost) and how dumb patents really are; some can be realised by a toddler, e.g. zooming strokes, device shape, and so on.

Apple may also end up buying patents from Kodak, as reports suggest that Apple wants those patents in its portfolio; being a patent bully, Apple deserves none of that. It has become more or less clear that Apple is just a branding (Samsung makes parts of its gadgets) and litigation company that collects silly patents while inventing just about nothing. The patent booster Dennis Crouch covered the ruling which lawyers generally like (a close friend tells me that many lawyers convert to patent law these days, it is a gold rush). Other large sites that covered the news concentrate on the number, which exceeds a billion dollars.

Apple boosters echo Apple’s talking points, whereas others give fairly fair coverage without obvious bias (except pro-patents bias, as expected, as opposed to pro-Apple).

Blogs got to the news early because most journalists don’t work over the weekend. The coverage has been decent in the sense that Apple got flak. The EFF chastised Apple and experts say it’s not over. Yes, more sites suggest that is is not over because Samsung won’t let go while it’s doing so well in the market.

Samsung has said: “It is unfortunate that patent law can be manipulated to give one company a monopoly over rectangles with rounded corners” (how true).

Here is another notable bit: “Jurors who zipped through more than 600 questions in three days to arrive at their verdict in the intellectual-property battle between Apple Inc. (AAPL) and Samsung Electronics Co. (005930) had as their leader an engineer with a patent to his name.”

This is an inadequate way to deliver a decision and several people already emphasise this. Groklaw‘s Pamela Jones says there is something wrong with this picture and Swapnil Bhartiya calls it “rushed job” and implies that it was not “a fair trial” . To quote; “The verdict in the Apple vs Samsung case came faster than expected. The jury seemed to be in a hurry (after having worked over time) and reached a verdict giving Apple a victory on a platter. Perhaps the jury did not want to spoil their weekend and handed their verdict which many have noted has several inconsistencies.”

The jury was expected to dismiss the case, so the decision surprised us somewhat. Steven J. Vaughan-Nichols is not worried. He writes: “The jury in Apple vs. Samsung, doubtlessly eager to be out by the weekend, rushed their way through the approximately 26 pages and 55 questions of their instructions and decided that Samsung did indeed violate some of Apple’s patents just over a billion bucks.

“Impressive? Not really.

“This is not the end. This verdict doesn’t even matter in the long run. This was just another clash.”

The jury is also biased because Apple is a US-based company and a glorified brand, whereas Samsung is “foreign”.

Pamela Jones says that $1,049,343,540 is too much and it’s lawyers who make money and brag about it the most. For them, it’s an idealogical victory, jutifying the leeching of society through software patents. Another one who is celebrating the outcome is an Apple-funded lobbyist whom we filed a complaint against. He turned blogging into a corrupt business model. But am I suggesting that this is AstroTurf? Of course not, why would the one-man business Müller Consulting do something that is against EU law and also a violation of US law that the FTC is cracking down on? Note the sarcasm.

When AstroTurfing disguised as “blogging” becomes mainstream the government does in fact crack down on it. Google did not pay anyone to do something similar. The services offered by Müller include mass-mailing journalists with talking points of said corporations, blogging with talking points and material handed in by the client using a blog run by Google, threatening opposition, etc.

The benefits of the programme Müller offers are that clients get to spam journalists and bloggers without getting flak; journalists quote the lies, attribute it to “independent source”; this is done by mailing rather than commenting (by finding otherwise-hidden E-mail addresses) to hide and ‘proxify’ the lobbying. We showed proof.

Anyway, leaving the AstroTurf aside, patents are granted spuriously and this whole case helped us all see that. In South Korea, both companies are said to have been infringing each others’ patents (the patent are too broad) and “Samsung, the biggest manufacturer of hand-held phones in the globe, did not duplicate Apple’s design, according to the Seoul Central Court in a new ruling.”

There is a lot of coverage about it, saying that “Apple vs. Samsung: S. Korea court rules iPhone not copied” (national biases are easy to see in Rupert Murdoch’s papers).

The coverage was more moderately decent and balanced in the UK, as neither company is British. Here is what Reuters wrote and here is an article that my cousin in Florida sent me: “After Samsung’s stunning $1 billion defeat in court at the hands of Apple , calling it a winner might seem awfully far-fetched. But that’s the argument some are making about the South Korean conglomerate.” (source).

The sure thing is, customers don’t win here. Apple claims to ‘own’ basic concepts and now it wants to tax people all around the world for enjoying rectangles with round corners. What would Moses have said?

A long time ago we called for an Apple boycott and some of my friends say I should do so again. My reply is, the people are already revolting and the boycott is far broader than us. Over the coming week, many journalists will slam Apple and patents. As Mr. Pogson put it, “Backlash Has Begun Against Apple…”

Engadget gives more interesting details and Dan Gillmor says that “A US jury has rubberstamped Apple’s exploitation of the patent system” (quoted from the summary).

That’s what it it: exploitation. We need not only to fight Apple by the USPTO as well, for being an enabler that Microsoft et al. share.

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5 Comments

  1. Michael said,

    August 27, 2012 at 8:36 pm

    Gravatar

    Ah, a friend of yours told you that Apple will lose business over being wronged and proving it in court.

    Have you told the Apple management team about this? They better learn to roll over the next time they are wronged so your friend will not report such things to you!

    As far as customers not winning – utter rubbish. Instead of just doing all they can to copy Apple, companies will now understand that it makes more sense to do what Apple does – spend time and money and effort on innovation and creativity. This will result in more choice and more diversity for customers. Right now we have 90% of smart phones that are sold being from Apple or the company that was doing all it could to copy them. I *much* prefer choice and diversity to such comparative lack of choice!

    Above you speak of Apple of holding a “monopoly”, but I do not think they do have a monopoly on creativity and innovation. I think others can *also* be innovative and creative and make excellent products. But it is cheaper to do as Samsung did and just copy others’ innovations, no matter how much this is morally wrong and harmful to the customer.

    This trial is excellent news – not just for Apple but for you and I and all other consumers. It is something anyone who is supportive of choice should be happy to see.

  2. George Hostler said,

    August 28, 2012 at 10:45 am

    Gravatar

    Roy, thanks for the links, I commend you for the well written info provided above. I enjoyed reading through these developments and agree with you.

    From the link you shared, Groklaw’s PJ gave what I surmised was a very thorough and thought provoking run down on the inconsistencies with the juror process. For example, she quotes, “As the legal blog, Above the Law expressed it: ‘Here’s the thing, ladies and gentlemen of the Apple v. Samsung jury: It would take me more than three days to understand all the terms in the verdict! Much less come to a legally binding decision on all of these separate issues. Did you guys just flip a coin?’”

    http://www.groklaw.net/article.php?story=2012082510525390

    She has a good point. How did the jury decide so quickly, especially without reading the instructions given by the judge? Especially since it would take a seasoned lawyer, a law expert several days to sort things out prior to deciding?

    This is not over by a long shot and Apple’s so called victory may be considered a short one.

    Michael Reply:

    It may be. But not likely. The appeal is likely to find a similar result, with at least most of the findings being maintained. The evidence against Samsung is just too powerful – was already very strong before the trial and the evidence that came out in the trial was just amazingly damning toward them.

    But this is good: it will mean more innovation and choice for consumers. As someone who supports open source ideals, I think this is great. Choice is a very good thing.

  3. mcinsand said,

    August 31, 2012 at 12:02 pm

    Gravatar

    What has gotten me over the years is how people, including some at Groklaw, would understand how Apple’s practices are wrong, but look the other way because Apple only had a minority market share. Now, the world is waking up to how dangerous a company can be when problems are not addressed early on. As I have said repeatedly, and as some are only lately starting to realize, Apple has forgotten more about anticompetitive behavior and frivilous litigation than companies like Microsoft will ever learn.

    This has woken those that have failed to appreciate how broken the US patent system is, but it has also woken those that have had a bit too much faith in our court systems. As if Judge Koh had not given Samsung a red carpet for appeal by denying Samsung a chance to fully rebut Apple’s baloney, the jury foreman’s comments make public how he negligently, irresponsibly failed to carry out the most basic jury instructions. He was very much the Flo Müller of the jury pool, trying to present himself as a patent expert when he was really showing how completely he failed to comprehend the requirements for patents, prior art, etc.

    Even if the jury foreman could not be held, charged, and fined, the USPTO should be. In looking over the patents that Apple was suing over, as listed here. After reading these patents, I firmly believe that the USPTO and examiners that actually granted these should be fined for the cost of the trial, including all attorneys and experts. This is ridiculous and, especially as a US citizen, embarrassing.

    Then, there is another thing about these patents that weighs into the evergreen argument between thinkers and the cultmembers over whether Apple is an innovator. This was the best Apple had to bring for the trial. For the win, this is proof that Apple may be good at marketing, they may be good at gaming the USPTO, but Apple is no innovator. They may be good at marketing others’ inventions, such as LG’s brilliant displays, but Apple is merely a marketer, repackager, rebrander. Looking over what they brought to the trial, any trace of doubt is removed.

    Some Apple apologists are also starting to wake up to realize Cupertino’s evil. Apple is a bully, a terrorist in the technological community, and petty. The circumstances that allowed Apple to win this battle were so ridiculous that people have shifted to Samsung’s side. Sometimes, this is what is needed: a wake-up call. HTC has recently announced that they will not negotiate with terrorists, and I doubt that Samsung will, either. The more attention this gets, the more people will start to see Apple for the scum they are.

    Michael Reply:

    Challenge for you:

    1) Pick a year from the last 20 years.
    2) Do a Google search – or use any other common search engine – and search for “Most innovate companies” of that year.
    3) Look at the first 10 relevant links.
    4) See if Apple is listed in the top 5

    My bet: at least in 9 out of 10 they will be. The idea that Apple is not innovative is just silly. But do the test – see what you find. List the search engine so others can replicate your findings (no hand-picking or game playing, just find what you find).

    Those that claim Apple is not innovative are not in touch with the tech industry. Those that claim Apple has some sort of monopoly are just being silly – yes, they are innovative and customer focused, but you *cannot* have a monopoly on such things. Other companies can also come up with innovative solutions and products. Apple has no monopoly on finding ways to greatly satisfy users – others can known them down from their top spot as the company which almost always is shown to have the highest user satisfaction ratings. It is not a “monopoly” when Apple is almost always the highest in that category, it is simply a sign of how much the focus on making excellent products instead of focusing on, say a check box list of features or pushing the highest tech stats, as so many other companies do.

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