06.10.18

Gemini version available ♊︎

Everyone Talks About Apple’s Notorious Design Patents But Not About ‘Abstract’ European Patents Used Against Apple and Linux

Posted in Apple, Europe, GNU/Linux, Patents, Samsung at 3:18 am by Dr. Roy Schestowitz

A ‘Battistelli era’ patent

EP2954737

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.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. [Meme] [Teaser] Miguel de Icaza on CEO of Microsoft GitHub

    Our ongoing series, which is very long, will shed much-needed light on GitHub and its goals (the dark side is a lot darker than people care to realise)



  2. Gemini Protocol and Gemini Space Are Not a Niche; for Techrights, Gemini Means Half a Million Page Requests a Month

    Techrights on gemini:// has become very big and we’ll soon regenerate all the pages (about 37,500 of them) to improve clarity, consistency, and general integrity



  3. 'Satellite States' of EPO Autocrats

    Today we look more closely at how Baltic states were rendered 'voting fodder' by large European states, looking to rubber-stamp new and oppressive measures which disempower the masses



  4. [Meme] Don't Mention 'Brexit' to Team UPC

    It seems perfectly clear that UPC cannot start, contrary to what the EPO‘s António Campinos told the Council last week (lying, as usual) and what the EPO insinuates in Twitter; in fact, a legal challenge to this should be almost trivial



  5. The EPO’s Overseer/Overseen Collusion — Part IXX: The Baltic States

    How unlawful EPO rules were unsurprisingly supported by Benoît Battistelli‘s friends in Baltic states; António Campinos maintained those same unlawful rules and Baltic connections, in effect liaising with offices known for their corruption (convicted officials, too; they did not have diplomatic immunity, unlike Battistelli and Campinos)



  6. Links 21/10/2021: GIMP 2.99.8 Released, Hardware Shortages, Mozilla Crisis

    Links for the day



  7. How Oppressive Governments and Web Monopolists Might Try to Discourage Adoption of Internet Protocols Like Gemini

    Popular movements and even some courageous publications have long been subverted by demonisation tactics, splits along unrelated grounds (such as controversial politics) and — failing that — technical sabotage and censorship; one must familiarise oneself with commonly-recurring themes of social control by altercation



  8. [Meme] Strike Triangulations, Reception Issues

    Financial strangulations for Benoît Battistelli‘s unlawful “Strike Regulations”? The EPO will come to regret 2013…



  9. [Meme] Is Saying “No!” to Unlawful Proposals Considered “Impolite”?

    A ‘toxic mix’ of enablers and cowards (who won’t vote negatively on EPO proposals which they know to be unlawful) can serve to show that the EPO isn’t a “social democracy” as Benoît Battistelli liked to call it; it’s just a dictatorship, currently run by the son of a person who actually fought dictatorship



  10. IRC Proceedings: Wednesday, October 20, 2021

    IRC logs for Wednesday, October 20, 2021



  11. [Meme] EPO Legal Sophistry and Double Dipping

    An imaginary EPO intercept of Administrative Council discussions in June 2013...



  12. Links 21/10/2021: PostgreSQL JDBC 42.3.0 and Maui Report

    Links for the day



  13. [Meme] [Teaser] “Judge a Person Both by His Friends and Enemies”

    Fervent supporters of Team Battistelli or Team Campinos (a dark EPO era) are showing their allegiances; WIPO and EPO have abused staff similarly over the past decade or so



  14. 'Cluster-Voting' in the European Patent Office/Organisation (When a Country With 1.9 Million Citizens Has the Same Voting Power as a Country With 83.1 Million Citizens)

    Today we examine who has been running the Finnish patent office and has moreover voted in the EPO during the ballot on unlawful "Strike Regulations"; they voted in favour of manifestly illegal rules and for 8.5 years after that (including last Wednesday) they continued to back a shady regime which undermines the EPO's mission statement



  15. The EPO’s Overseer/Overseen Collusion — Part XVIII: Helsinki's Accord

    The Finnish outpost has long been strategic to the EPO because it can help control the vote of four or more nations; evidence suggests this has not changed



  16. [Meme] Living as a Human Resource, Working for Despots

    The EPO has become a truly awful place/employer to work for; salary is 2,000 euros for some (despite workplace stress, sometimes relocation to a foreign country)



  17. Links 20/10/2021: New Redcore Linux and Hospital Adoption of GNU Health

    Links for the day



  18. IRC Proceedings: Tuesday, October 19, 2021

    IRC logs for Tuesday, October 19, 2021



  19. Links 19/10/2021: Karanbir Singh Leaves CentOS Board, GPL Violations at Vizio

    Links for the day



  20. [Meme] Giving the Knee

    The 'knee' champion Kratochvìl and 'kneel' champion Erlingsdóttir are simply crushing the law; they’re ignoring the trouble of EPO staff and abuses of the Office, facilitated by the Council itself (i.e. facilitated by themselves)



  21. Josef Kratochvìl Rewarded Again for Covering Up EPO Corruption and the EPO Bribes the Press for Lies Whilst Also Lying About Its Colossal Privacy Violations

    Corrupt officials and officials who actively enable the crimes still control the Office and also the body which was supposed to oversee it; it's pretty evident and clear judging by this week's press statements at the EPO's official Web site



  22. [Meme] Sorry, Wrong Country (Or: Slovenia isn't Great Britain)

    Team UPC is trying to go ahead with a total hoax which a high-level European court would certainly put an end to (if or when a referral is initiated)



  23. How Denmark, Iceland, Finland, Norway and Sweden Voted on Patently Unlawful Regulations at the EPO

    We look back and examine what happened 8 years ago when oppressed staff was subjected to unlawful new “regulations” (long enjoyed by António Campinos, the current EPO autocrat)



  24. The EPO’s Overseer/Overseen Collusion — Part XVII: The Non-Monolithic Nordic Bloc

    We start our investigation of how countries in northern Europe ended up voting on the unlawful “Strike Regulations” at the EPO and why



  25. Proof That Windows “11” is a Hoax

    Guest post by Ryan, reprinted with permission



  26. Firefox Becomes as Morally Reprehensible as Apple, Facebook, or Uber

    Guest post by Ryan, reprinted with permission



  27. Links 19/10/2021: GNU dbm 1.22 and Godot 3.4 RC 1

    Links for the day



  28. [Meme] [Teaser] GitHub an Expensive and Dangerous Trap (Also: Misogyny Hub)

    The ongoing Microsoft GitHub exposé will give people compelling reasons to avoid GitHub, which is basically just a subsidised (at a loss) trap



  29. Norway Should Have Voted Against Benoît Battistelli's Illegal (Anti-)'Strike Regulations' at the European Patent Office

    Benoît Battistelli‘s EPO faced no real and potent opposition from Norwegian delegates, who chose to abstain from the vote on the notorious and illegal so-called ‘Strike Regulations’ (they’re just an attack on strikes, an assault on basic rights of labourers)



  30. Links 19/10/2021: Sequoia PGP LGPL 2.0+, Open RAN Adoption

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts