According to trial reports such as this one by The Verge's Josh Lowensohn, Apple's lead trial counsel (for its offensive case), Morrison & Foerster's Harold McElhinny, wants the San Jose jury to rule in Apple's favor as if it was asserting ten times the number of patents that are actually at issue:
"Samsung copied many many features, but there are limits in what we can accomplish in a trial," said Harold McElhinny, a partner at Morrison Foerster, the law firm representing Apple. "We can't try 50 patents," he added.
It's just my personal opinion, but I think statements like this should be prohibited at jury trials. The focus should be strictly and exclusively on what is at issue. I wouldn't necessarily have a problem with references to prior rulings under certain circumstances, but lawyers shouldn't be allowed to make totally unsupported allegations of massive infringement because it can confuse jurors.
It's true that a 50-patent jury trial wouldn't be manageable, but there could be multiple trials in California and, especially, in multiple venues. Nokia asserted 50 different patents against HTC in seven countries. Apple has not even filed a second ITC complaint against Samsung (while Nokia brought two against HTC, and Apple itself once brought a second one against HTC). ITC investigations can't be consolidated into federal lawsuits, and even the ITC itself can't consolidate two investigations if the second complaint is filed after the first investigation has reached an advanced stage (much less if it has been concluded, which is the case here).
There's a misconception out there that the judge "forced" Apple to narrow its claims down to five. In 2011, the Federal Circuit (to which this case here will be appealed as well) determined in the Katz case that a court can only obligate a plaintiff to drop duplicative claims. Apple could have refused to drop non-duplicative claims, but it didn't do so because there was basically a deal with the judge that only a narrowed case would be taken to trial quickly.
But the most important concern here is that Apple has now been suing Android device makers (initially HTC, a dispute that was settled in 2012; Motorola since 2010 and Samsung since 2011) for 49 months. Yes, 49 months ago to the day, Apple filed its first Android lawsuit, and Steve Jobs, who called this a "holy war" in an internal email and according to his official biography was prepared to "go thermonuclear war", said the following:
"We can sit by and watch competitors steal our patented inventions [or take action] [...] [C]ompetitors should create their own original technology, not steal ours."
The same Steve Jobs said in an interview you can see on YouTube that good artists copy and great artists steal and that Apple had, in his opinion at the time, stolen shamelessly from others.
If you change mind on copying and stealing and want to wage a holy war, you need thermonuclear patents. And if you accuse others of "stealing", you firstly need to prove that you own what you say they steal.
Steve Jobs regarded Android (according to his biography) as a "stolen product". If Larry Ellison (Oracle's CEO) said so, I could understand it. Mr. Ellison accused Google of "evil" behavior with respect to Java. There's every indication that the Federal Circuit will determine that 7,000 lines of Java API declaring code that Google concededly copied for Android are, contrary to an erroneous district court finding, protected by copyright. If Oracle subsequently overcomes Google's fair use defense (through a judgment as a matter of law or a new trial), then we have a case of theft. By the way, it's completely mistaken to believe that Oracle is anti-Android. Once Google complies with Java rules and takes a proper license, Oracle will literally love Android. Anyway, in 49 months of Apple litigation over Android, not a single line of copied Apple program code has been discovered. (Yes, Android uses different programming languages than Objective C, but not even a translation of Apple program code to other programming languages ever showed up.)
Oracle's case is now exclusively a copyright case, while Apple is now exclusively asserting patents. Copyright covers expression, patents cover broader concepts. But even if you hold a patent on a particular combination of technical elements (claim limitations), and if it is valid (which Apple's asserted patents overwhelmingly have not turned out to be in European courts), you don't necessarily own the whole feature, and those who implement a given feature you believe your patent covers aren't thieves if your patent doesn't cover the whole feature.
In the previous post I discussed Apple's marquee invention at this trial, "slide to unlock", which ten European judges sitting on four courts in three countries thought was not patentworthy in light of what others created before and I showed you pictures of a touchscreen phone that slide-to-unlock well before the iPhone was launched. Even when considered patentworthy, defendants always managed to show slide-to-unlock implementations that fell outside the scope of the patent. That patent is a particularly good example. It's symptomatic. Even most die-hard "fanbois" would have become reasonably skeptical of Apple's Android-is-a-stolen-product claim after attending over the years as many slide-to-unlock hearings, trials and annoncements of decisions as I did.
After 49 months of holy, supposedly-thermonuclear war and in light of Apple's counsel claiming that Apple could have taken 50 patents to this trial and proved that Samsung infringes all of them, I can't see, with the sole exception of "rubber-banding", a single feature -- and I mean something that people would describe as a feature in a few words, not a small aspect of one feature -- of which Apple has proven in court that it can prevent Android device makers from delivering it to their customers in a way that provides great functionality and an uncompromised user experience.
Rubber-banding (the overscroll bounce effect) was in earlier Android products, and it's no longer found in today's Android devices. Apple won rulings in multiple jurisdictions (U.S., Germany, Japan, Korea). In Europe the jury is still out on validity (there's an opposition proceeding before the European Patent Office, and Apple's Mannheim rubber-banding lawsuit against Samsung as well as a Munich appeal of Apple's rubber-banding injunction against Motorola were stayed pending the EPO proceedings); in the U.S., most claims of the patent were invalidated, but the one that mattered most to Apple, the one asserted against Samsung in the earlier California case, was among the surviving three claims.
I love rubber-banding, and as an Android user I really miss it. But, realistically, if this is the only effect that I as an Android user experience as a result of Apple's patent assertions (besides the fact that Samsung now designs its products in a more distinguishable way, which has nothing to do with functionality), then that's little to show after 49 months of "holy war".
I'll quickly discuss what has so far (not) come out of Apple's attempts to monopolize other features, and then I'll explain, in the final part of this post, why it's so hard to protect user interface innovations (which is so frustrating for Apple fans to see).
Data tapping (phone number or similar "structured data" will be detected in email or on web page, and you can then perform an action such as dialing on it): The '647 patent is also being asserted against Samsung in this new trial. But its broadest claims were declared invalid by the United States Patent and Trademark Office, and Apple is appealing that decision. Sometimes the less broad claims can still be powerful enough to monopolize a feature, but here there is at least serious doubt that Apple can prevent Android device makers from providing "data tapping". Apple can try this only in the U.S. (I never saw this patent elsewhere), and it won a U.S. import ban against HTC over this patent (but not over 9 others it originally asserted in its ITC complaint) in 2011. A few months later there was an enforcement dispute with Apple claiming that HTC still infringed. The ITC, however, denied Apple the emergency relief it was seeking against HTC, which suggests to me that there were legal issues surrounding HTC's claim that it was no longer infringing (though it still implemented the feature in some ways) that needed to be clarified. Due to the Apple-HTC settlement (which occurred without Apple having prevailed on more than this one patent, out of several dozen patents it asserted), this dispute was never adjudged. I think a reasonable claim construction of this patent does leave room for viable workarounds.
One of Apple's winning software patents at the first California trial was "tap to zoom and navigate" ('163). Note the "and navigate" part. The patent does not cover all tap-to-zoom. It is infringed only if after tap-to-zoom the user touches another part of the screen in order to navigate there. The patent can be worked around by avoiding that second step, and everything's fine. It's more of a symbolic win.
The '915 "pinch-to-zoom API" patent is not a pinch-to-zoom patent per se, but I thought (though Samsung disagreed) that it's inevitably infringed by implementing pinch-to-zoom. Most of the damages in the first case were about design patents, not technical patents, but of the sofware patents-in-suit this was the relatively most valuable according to Apple's damages expert. However, it's being reexamined by the United States Patent and Trademark Office, and in reexamination the USPTO has so far consistently rejected all claims, which is why Apple felt forced to file a notice of appeal.
In August 2013 the ITC ordered an import ban against Samsung with respect to the Steve Jobs patent and an audio hardware patent (not an Android issue), but it also cleared Samsung's workarounds over Apple's procedural (not substantive) objections. As a result, Samsung is still doing fine in the U.S. market, so Apple has simply not won anything commercially meaningful at the ITC.
In Europe, Apple tried to cause serious damage to Samsung, Motorola and HTC with a "touch flags" patent. In February, the European Patent Office revoked it. Apple had not won any infringement ruling anyway, despite attempts in the UK (in response to a declaratory judgment action by HTC), the Netherlands, and Germany.
It's pure hypocrisy when Apple tells the California jury that there's something wrong with Samsung's two patents-in-suit because those were acquired (from U.S. inventors). Apple itself tried (but failed) to gain massive leverage over all three leading Android device makers in Germany with a keyboard-related patent it had acquired from Mitsubishi. In December, the Federal Patent Court of Germany invalidated that one.
None of Apple's European (technical) patent infringement lawsuits against Samsung resulted in any presently-enforceable injunction. None of Apple's seven German lawsuits over technical inventions resulted in any ruling in Apple's favor (Samsung's seven German lawsuits against Apple weren't more successful either, by the way). Apple won nothing in the UK. Nothing lasting and useful in the Netherlands.
This list is not exhaustive, and there are obviously some Apple patents in play that haven't come to judgment yet. Also, there some ongoing appeals. Still, after 49 months of "holy war", rubber-banding is the only feature that Android device makers undoubtedly had to remove because of successful assertions (even in multiple jurisdictions).
I have had discussions on Twitter and email with Apple fans who find it hard to believe that Apple, after revolutionizing the market, can't prevent companies like Google and Samsung from providing some of the same functionality. But Apple, like everyone else in this field of incremental innovations, is standing on the shoulders of giants. A smartphone or tablet is a mobile computer, but Apple does not own all computing technology. Apple achieved key breakthroughs for those product categories. Those breakthroughs weren't just marketing successes. They wouldn't have been possible without certain technical achievements that made portable touchscreen devices as usable as they are now. But Apple didn't create all of this singlehandedly on a green field. There were other touchscreen devices before, and they came with features of the kind many people mistakenly regard as foundational Apple inventions (for example, the Neonode N1m already had slide-to-unlock, even though in a less elaborate graphical form).
User interface patents are what Apple hoped to gain leverage from. But just like Apple couldn't monopolize graphical user interfaces in earlier decades (it didn't invent the GUI anyway but "stole" it) and Microsoft Windows became the mass-market platform, Apple now can't prevent Android devices from doing to the iPhone and the iPad what Windows PCs did to the Mac. And that's actually good for consumers, provided that valid patents are respected, but only valid ones and even those only based on their true, legitimate scope, which appears rather narrow now.
If you want to obtain a patent on an aspect of a user interface, you are limited by the fact that you can't monopolize end users' body parts. What I mean is that you can't take out a patent or copyright on a gesture per se, like using a finger to scroll or using two fingers to zoom. There are only three areas in which you can claim to own intellectual property:
the graphical representation of the user interface before a user touches it,
the computer's interpretation of user actions on the interface, and
the visual effects resulting from user actions.
In practical terms, you can forget about the first part if you basically just draw rectangles, circles, pixels etc. At most you can claim copyright or try to obtain a design patent on a very specific design, but you can't patent this before-the-user-touches kind of functionality if it's just computer graphics of the kind that has been around for decades. For example, the slide-to-unlock slider could have been drawn on computers that existed long before Apple was even founded (and it celebrated its 38th "birthday" yesterday).
The third part -- the graphical response to a user action -- is more interesting. For example, rubber-banding is at least a different kind of bounce-back from the ones that existed before.
It's the second part where there's most of the opportunity. The "Steve Jobs patent", which Samsung has worked around anyway, is an example of a patent that focuses pretty much on the second part. It's about how the computer can distinguish between a vertical/horizontal finger movement and a diagonal movement. But in this area Apple also has to face tons of prior art, and I said before that the U.S. government approved Samsung's alternative solution to the problem the "Steve Jobs patent" purports to solve.
If you just keep in mind that a patent holder can't own the user's fingers or what goes on in the user's mind, then it's probably easy to see that there's a limit to the breadth of any multi-touch user interface patent. In 49 months of litigation, not one Apple patent has proved thermonuclear in terms of the Holy Grail combination of being (i) valid, (ii) infringed, and (iii) impossible to work around without massive commercial implications. Otherwise Android wouldn't have the market share it has. And it wouldn't have that market share if Google and Samsung and others were the kinds of copycats Apple makes them out to be.
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