A 'Battistelli era' patent

Summary: What corporate media and the 'mainstream' speak of in relation to Apple and what more 'niche' bloggers pay attention to, serving to highlight a decline in patent quality at the European Patent Office (EPO)

LAST weekend we wrote about Zeroclick, LLC v Apple, Inc. We took note of the relation to a very malicious patent troll, Erich Spangenberg. Days later Watchtrolll wrote about this case as well, adding virtually no new information.

But Apple remains in headlines (about patents) mostly because of its own battles against Android (and by extension Linux). Professor Michael Risch's analysis of Apple v Samsung is only days old and it speaks of the massive "damages" of ~$533,000,000. Risch's views:

I've done a few interviews about the latest Apple v. Samsung design patent jury verdict, but journalistic space means I only get a couple sentences in. So, I thought I would lay out a couple points I see as important. We'll see if they hold up as predictions.

There's been a lot written about the case, so I won't rehash the epic story. Here's the short version. The design patent law affords the winning plaintiff all of the profits on the infringing article of manufacture. The Supreme Court ruled (reversing about 100 years of opposite practice) that the article of manufacture could be less than the entire accused device for sale. Because the original jury instructions did not consider this, the Court remanded for a determination of what the infringing article of manufacture was in this case (the design patents covered the shape of the phone and the default screen). The Federal Circuit remanded, and the District Court decided that, yes, in fact, the original jury instructions were defective and ordered a retrial of damages.

The District Court adopted the Solicitor General's suggested test to determine what the article of manufacture was, determined that under that test it was a disputed fact question, and sent it to the jury. Apple asked for $1 billion. Samsung asked for $28 million. The jury awarded $533 million, which is more than $100 million more than the damages were before the Supreme Court ruled.

Josh Landau (CCIA) too wrote about these design patents, probably for the dozenth time or so. "Comments from Samsung Jurors Drive Home The Flaws In Design Patents," Landau argued.

Flawed Logic

The logic of the jury’s verdict also requires a different result than profits on the entire device.

Even if we assume, contrary to both good policy and established case law, that profits on the components that produce the icon grid are available, those components still aren’t the whole phone. The cellular hardware, for example, is not involved in producing a display (after all, Apple’s iPod Touch produced a similar display without any cellular functionality), but is still part of Samsung’s total costs and profits. For that matter, the external casing isn’t required in order to produce the grid of icons.

If the article of manufacture is defined by the hardware required to produce the icon grid, then it’s also defined as something other than the entire phone.

Flawed Results

It all comes back to a single problem. The design patent total profits rule produces tests that are incoherent and impossible to apply when design patents are available for small pieces of complex, multi-component products. The total profits rule of €§ 289 simply doesn’t make sense in these situations.

We're very disappointed to see Apple stooping to 'Microsoft levels' and 7-8 years ago we called for an Apple boycott (this made it into sites like Slashdot at the time). Has much changed since? Other than Steve Jobs' death?

Well, sometimes we openly support Apple's patent battles, e.g. against Qualcomm. As we explained before, if Apple wins this dispute, it will be good for phones that have Linux in them as well.

As it turns out, Qualcomm now uses a software patent granted by the EPO. To quote Florian Müller:

In 10 minutes: #Qualcomm v. #Apple #patent infringement trial in Mannheim, Germany. Patent-in-suit: EP2954737 on a „power tracker for multiple transmit signals sent simultaneously“.

He later added:

After Judge Dr. Kircher of the Mannheim Regional Court expressed serious doubts about the validity of #Qualcomm‘s EP2954737, QCOM felt forced to stipulate, with #Apple, to a stay of this case pending the EPO‘s decision (in a year or so) on Apple and #Intel‘s opposition. https://twitter.com/fosspatents/status/1003968003413815298 …

On why it's a software patent:

Yet another software patent: "the functions described may be implemented in hardware, software, firmware, or any combination thereof. If implemented in software, the functions may be stored on or transmitted over as one or more instructions or code on a readable medium"

Well, software patents like these have plagued the EPO, not just the USPTO. We doubt any of that will change under António Campinos; it's like the EPO goes in the very opposite direction of the US (where the Federal Circuit and Patent Trial and Appeal Board invalidate software patents en masse).

Müller later put it together in a blog post [via], having watched this dispute for quite some time. To quote:

Four months back, Qualcomm's lead counsel in the German Qualcomm v. Apple cases, Quinn Emanuel's Dr. Marcus Grosch, hoped to obtain a Germany-wide patent injunction against Apple this summer. The related case (one of various patent infringement claims Qualcomm has brought against Apple in Germany) went to trial this afternoon, and it's unlikely that anything, if ever, will happen in that particular matter before the summer of 2019.

The patent-in-suit, EP2954737 on a "power tracker for multiple transmit signals sent simultaneously," is under massive pressure because of Apple and Intel's opposition to its recent grant. Of the four prior art references cited, Alcatel Lucent's European patent application EP2442440A1 poses the greatest--though not the only--threat to Qualcomm's patent.

Why did the EPO foolishly grant such a patent? In the US, in the meantime, software patents are being invalidated and yesterday Müller gave a new example:

Yesterday the United States Patent and Trademark Office had bad news for a particularly broad member of Twitter's key patent family, U.S. Patent No. 9,088,532 on a "device[-]independent message disribution platform." As I reported in March, the '532 patent is being reexamined based on a patent application by independent Indian inventor Yogesh Rathod as well as a couple of other prior art references. The reexamination requested related to claims 1-3, 8, 9, 13-15, 17, 20, and 21, all of which are being reexamined. In a (first) Office communication since opening the reexamination proceedings, the USPTO has held all of the reexamined claims invalid, challenging Twitter to persuade the examiner that its patent claims should be upheld.

Prior art rather than Section 101 (or similar) was cited here, but still... it's a testament or evidence of the fact that the US improves patent quality, whereas Europe moves in the opposite direction under Battistelli's crooked leadership. ⬆