Bonum Certa Men Certa

In Apple v Samsung Patents That Should Never Have Been Granted May Result in a Billion Dollars in 'Damages'

Merely damages the credibility of the USPTO if anything...

11 Cool, Funny or Just Plain Strange Patents for Back to School
Reference: 11 Cool, Funny or Just Plain Strange Patents for Back to School

Summary: A roundup of news about Apple and its patent cases (especially Apple v Samsung), including Intel's role trying to intervene in Qualcomm v Apple

HERE in this Web site we prefer to focus on topics/angles which ought to be covered by mainstream media but never/rarely are. The Apple v Samsung trial is generally being covered quite a lot by big publishers, e.g. "Apple v Samsung Poses Threat Beyond Just Tech" and other new headlines/reports [1, 2, 3, 4, 5, 6]. It is already being mentioned quite heavily in social control media, probably because Apple is involved. Not many patent cases manage to attract quite as much public interest. We remarked on it a few times earlier this month. As Wall Street media put it last week, "Apple Wants $1 Billion From Samsung at Smartphone Retrial" (retrial after nearly a decade of fighting).



Apple has taken patent maximalism/lunacy to new heights in California. It's seeking billions in 'damages' over a simple shape of something. To quote one report:

Apple Inc. is seeking about $1 billion from Samsung Electronics Co. in another go-round stemming from a long-running smartphone patent-infringement dispute.

Jurors at the retrial before before U.S. District Judge Lucy Koh in San Jose, California, learned at the outset that the South Korean company infringed three of Apple’s design patents and two utility patents. Their sole job, Apple lawyer Bill Lee said, is to determine what damages Apple can collect.


Damages? What damages? As Josh Landau (CCIA) put it 5 days ago:

The design patent total profits rule of €§ 289 was created in an era when awards of profits were common and where complex multi-component products like we have today were uncommon. (Obviously, the concept of a computing device with an ecosystem of third-party app developers wasn’t even within the realm of imagination when €§ 289 was written.)

In fact, €§ 289 was created as a reaction to a decision about carpet decorations. A customer might seek out and buy a carpet just because of the design. But for most products today, that simply isn’t the case.

In order to avoid the kind of perverse results I’ve described, the article of manufacture for an icon or GUI should be interpreted as the software, not the device it runs on. And even if that change were made, Congress should still consider revisiting the total profits rule. A single infringing icon that’s a small part of a complex operating system shouldn’t entitle a patent owner to the total profits on the whole operating system—no matter how iconic it might be.


Patents on designs are a clear misfit; copyright and trademark laws cover designs. There's this new blog post at IP Kat about industrial designs in Mexico with subheadings like "New concepts for industrial design examination" and "New regime for the validity of designs" (they aren't talking about patents!).

Going back to Landau, the following day he published "Smartphones, Diapers, and Design Patents" -- a post in which he mentioned Microsoft v Corel analysis by Sarah Burstein. She is a proponent of such patents. She wrote about it years ago.

Landau alludes to diapers and says:

Apple v. Samsung is obviously about high tech smartphones. Other recent design patent cases have focused on high tech products as well—both the Nikola v. Tesla case Patent Progress covered recently and the Microsoft v. Corel case that Prof. Sarah Burstein described over on Patently-O deal with high tech products.

[...]

Similarly, in a design patent case involving diapers, you have a printed outside layer—and then all the technology on the inside. Is the article of manufacture the entire diaper, or the printed outside layer? And how do you distinguish that from the Apple v. Samsung case?


The truth of the matter is -- as we have been arguing for a number of years -- patents on designs are too bizarre a concept. Watchtroll now promotes the nuisance patent litigation against Tesla (over mere shape/curves of a truck). Patent maximalists typically like any patents, irrespective of how broad they are. That just means more litigation, hence more business for them.

"The truth of the matter is -- as we have been arguing for a number of years -- patents on designs are too bizarre a concept."There is another patent battle going on which involves Apple. But it's not about design patents and it has nothing whatsoever to do with Samsung. As Florian Müller put it the other day: "While waiting for a tire change, I get to watch another #Qualcomm v. #Apple #patent infringement hearing at the Munich I Regional Court. Some chipset in some Apple products allegedly infringes on a manufacturing patent. Intel joined Apple in challenging the patent. More to follow [...] Breaking News: Qualcomm employee just told the Munich I Regional Court today (at a #patent infringement hearing relating to the A10 chip) that Apple recently canceled a settlement meeting on short notice. Next meeting not scheduled yet."

Müller then wrote a blog post about it:

While Apple is seeking north of $1 billion in damages from Samsung in the ongoing jury re-retrial in the Northern District of California, its earth-spanning dispute with Qualcomm continued today in the Munich I Regional Court with a first hearing (the primary objective of which is roughly comparable to that of a Markman hearing in a U.S. patent infringement case). Qualcomm alleges that the iPhone 7 and 7 Plus infringe its EP1199750 on a "post[-]passivation interconnection scheme on top of [an] IC chip."

I'll start with the most interesting piece of information I gleaned there. A Qualcomm employee--presumably an in-house lawyer, but I don't know his name and title--responded to Presiding Judge Dr. Zigann's question about the state of settlement discussions. According to Qualcomm, the parties had scheduled a meeting that would have taken place recently, but Apple canceled on short notice, and no new meeting has been agreed upon yet.


Qualcomm has long exploited SEP to tax pretty much every large company that sells chips (or products with chips inside them) -- a subject which does not seem to bother Delrahim, unlike a long list or big bunch of "former government officials and professors" as Müller put it (Dennis Crouch covered this around the same time).

"Patent maximalists typically like any patents, irrespective of how broad they are. That just means more litigation, hence more business for them."It's worth noting that Intel sides with Apple here; Intel also lobbies for software patents and days ago Michael Proksch from Intel Standards Group was quoted as saying that they they invest $100 million annually in a 50,000-strong patent portfolio.

Intel has in fact filed/fired another patent missile:

Intel has filed for a declaratory judgment of non-infringement against small semiconductor licensing business Tela Innovations, in another dispute that shows how assertion activity is continuing to pick up in the chip sector. This spat has a particularly interesting edge to it given that Intel was an early investor in Tela and the two companies have a covenant not to sue (CNTS) dating back to May 2007. That covenant is still in effect and according to Intel’s filing “covers Tela patents claiming priority during the term of the CNTS”


A CNTS has all sorts of other names associated with it. Tela is actually new to us. It seems to be rather obscure, more or less like many patent trolls, but its Web site does not come across as that. There's more to them than their patents.

"Imagine lots of patent lawsuits over shapes of cars or components around/inside the car."Where does this all end up? Where do such large companies (Intel, Qualcomm, Apple and Samsung) position themselves in the market? Who will pay for the legal battles if not customers that nowadays pay about $1,000 for a phone? The shape of things -- pardon the pun -- ain't so great.

According to yesterday's latest update from Müller, Homer Simpson may sway the big trial, which is a jury trial:

It would have been preferable to give the Apple v. Samsung design patent damages re-retrial jury in San Jose (Northern District of California) a chance to render a verdict before the weekend. In that case, jurors might have put an end to this disruption of their lives. But the way things worked out, they're now going to think about what position to take on Monday morning when official deliberations begin. In the meantime, they're not allowed to talk to anyone about the case or to take a look at any media reports (whether some jurors do so anyway is another question, but they're not supposed to).

As in the previous trials in this case, and as I mentioned a few days ago, Apple's lawyers portrayed Samsung as an intentional infringer, an unrepentant copyist, with Samsung being barred from presenting some evidence that could have shed a different kind of light on that question.

The holdings that (i) Samsung infringed those three design patents (a long time ago) and (ii) that those patents are valid are "law of the case" and the re-retrial jury must presume both to be the case. It is worth noting, however, that courts in other jurisdictions looked at international equivalents of those intellectual property rights (and at devices from the same generation of Android-based Samsung products) and reached rather different conclusions. But things are the way they are for the purposes of this U.S. case, so the focus is just on damages, and the single most important question in this regard is what "article of manufacture" a disgorgement of Samsung's profits should be based on: the entire device (which was considered a foregone conclusion in previous trials, but the Supreme Court and, previously, the United States Department of Justice disagreed with Judge Koh, the United States Court of Appeals for the Federal Circuit, and Judge Lucy H. Koh) or one or more components?

[...]

The world outside that San Jose courtroom overwhelmingly prefers a component-based damages determination. This InsideSources article on the problems that an excessive damages amount in the Apple v. Samsung case could cause tech and non-tech companies alike is a good example. But jurors won't have the benefit of such information on the wider ramifications of what they're required to decide.


"What has patent maximalism wrought?"We have always argued that jury trials, especially for technical matters, are inadequate. It is rather odd that such trials are even being considered in this domain. If Apple gets its way, a lot of industries will be impacted. Imagine lots of patent lawsuits over shapes of cars or components around/inside the car.

What has patent maximalism wrought?

Recent Techrights' Posts

BetaNews Appears to Have Fired All Of Its Staff
Even serial sloppers
Gemini Protocol Turns 6 on Friday
Active (online) Gemini capsules are estimated by Lupa at over 3,000
Microsoft's "FUD-as-a-Service" (Against Linux) Not Functioning Well
This is the kind of contribution companies like Microsoft and Google have to offer to society
Betanews Becoming a Slopfarm is "Betanews Growing Alongside You", According to Betanews
Their first 'article' in over two weeks is 52% "AI-generated" (slop), 33% mixed (edited slop), 18% human-written, says an advanced scanner.
 
The Right to Know and the Freedom to Report on Crime (at the Higher Echelons)
I'd like to do the same thing for the next 20 years
After the Web Becomes Slopped to Death
A lot of people are rightly fed up with the "modern" Web
Microsoft's Windows is a Niche Operating System in Africa
African nations aren't a large contributor to Microsoft's income, but if many African nations move away from Windows, then the monopoly is at risk
Like Most Social Control Media, Microsoft LinkedIn is Collapsing
One reason for Microsoft acquisitions is debt-loading, i.e. offloading and burying its debt
Microsoft is Losing Its Richest Clients
Unlike some very poor countries, Germany and the EU are a considerable source of income to Microsoft
Proprietary Means Not Secure
Proprietary software tends to rely on secrecy, not good design
Slop in 'AI' Clothing is a Passing Fad, We'll Get Past It (Like Blockchain Before That)
Many people cheat in exams using slop and there are professionals that try using slop as a "shortcut"
GNOME Does Not Campaign Against Microsoft, KDE Does
It's good to see that KDE is still active in promotion of Free software - a term that it uses
Slopwatch: BetaNews, Linuxsecurity, and Other Prolific Slopfarms
name and shame the sites that establish such proliferation of slop
Gemini Links 18/06/2025: Birch Lake and Loon Pond
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, June 17, 2025
IRC logs for Tuesday, June 17, 2025
Links 17/06/2025: "The Grift Economy" and Kubernetes Does Proprietary
Links for the day
Coffee Day and LLM Sloppers
The LLM slop "bros" are a lot like fake-money bros; they lie to people, they boast that they lie to people, and they're generally bad people, BS artists in colloquial terms
Double-Dipping the Docket for Microsoft Glory and Censorship of Microsoft Critics
same lawyer, same barrister, all US, all Microsoft
TheLayoff Censorship of IBM Threads Has Gone Truly Ludicrous
we do not argue that TheLayoff should not cull LLM slop
More Stallmanites Added to FSF Board and Summer Fundraiser Commences
There's some good news from the FSF
Gemini Links 17/06/2025: Consistency and Notes About NixOS
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, June 16, 2025
IRC logs for Monday, June 16, 2025
July 2 2025 Would Not be First Big Wave of Microsoft Layoffs Before Major National Holiday
July 2 or 3 mark the start of a very long weekend in the US
IDG's NetworkWorld Seems to Have Just Become LLM Slop
If IDG (now controlled by China) does that in at least one site, why not the rest? Only a matter of time?
Gemini Links 16/06/2025: Free Lunches and Bookmarklet for Mastodon
Links for the day
IBM: Less Than a Month's Severance for Each Decade of Service
Yes, decade!
Taking a Lesson From Denmark and Greenland? Iceland Shows New Lows for Windows, All-Time Highs for GNU/Linux
If Microsoft sabotages systems of judges at the Hague (in order to appease the insane man who wanted to invade Greenland), why won't its neighbour Iceland take note?
BetaNews Has Just Deleted Its Latest 'Article' or Got Cracked Again and Restored From Outdated Backup Again
BetaNews seems to be in some serious trouble right now
Software Freedom is "Activism" Because the Corporate Agenda Revolves Around Bribery, Deceit, and Betrayal
At the end Software Freedom will win because it's on the same side as truth and lawfulness
The EPO, Europe's Largest Patent Office, Admits Outsourcing to Microsoft Slop
Their sole goal is to make more money
Links 16/06/2025: EchoLeak and NASA Teaming up With India
Links for the day
The Better the Understanding or the More Nations Understand the Threat Posed by Microsoft, the Faster It'll be Eradicated
We believe that the thing to advocate is self-hosting and Free software... A lack of simplicity or absence of alternatives is a form of vendor lock-in
A Week of Sunlight
They say transparency is like sunlight to a vampire
"Linux" Sites That Went Astray
there are even worse things than shutdowns
Links 16/06/2025: Climate, Wildfires, Breaches, and Monopolies
Links for the day
Links 16/06/2025: Summer in Finland and Misunderstandings
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, June 15, 2025
IRC logs for Sunday, June 15, 2025