1. Design patents
When I read an article on Pixel, the Android smartphone made by Google, shortly after its official presentation, I saw a picture and (being an iPhone user myself) thought it was an iPhone shown only for the purpose of describing Google's aspirations and illustrating the competitive environment. But no. The image showed a couple of Pixels. It wasn't the following picture, but a somewhat similar one (this post continues below the image):
Then I read about the range of choices and the price points, and they were very iPhone-like, too. Another iPhone characteristic: hardware and software are made by the same company.
As I follow the Apple v. Samsung design patent case, I was obviously thinking to myself: is Apple going to sue them? And meanwhile at least one website, FastCo.Design, has raised the question in an article that quotes design patent expert Professor Sarah Burstein saying it wouldn't be impossible to imagine Apple at least sending Google a letter. Professor Burstein notes that "[t]he official test is it has to look the same to an ordinary observer" as opposed to a requirement for a "precise line-by-line copy to infringe."
I personally wouldn't dare to predict how a jury would decide. Firstly one would have to know exactly which design patent(s) Apple would pick from its portfolio to assert. A design patent on a large button below the screen wouldn't work at all (as you can see on the photo above); others, however, might very well stand a chance of passing the "ordinary observer" test.
Two and a half years ago, Apple and Google withdrew all patent infringement lawsuits pending against each other but didn't extend a license to each other (cross-licenses practically never include design patents anyway). Google even has kept on seeking the invalidation of certain Apple patents in different jurisdictions.
I guess the appetite between the two parties for comprehensive patent litigation each other is nil. I can't see why that would have changed since the spring 2014 second-class settlement. But they could duke it out over design rights without escalation of the throwing-in-the-kitchen-sink kind.
Apple could just wait and see how the Pixel is received. There are reports of demand already having exceeded Google's expectations, though some planned shortage may sometimes also be part of the marketing plan. Even if true, Google is probably still not going to move quantities that would have a huge impact on Apple's business. Design rights could still be asserted later, but obviously the story to present to the judge and the jury would be weaker if Apple elected to sit by idly for some time. Also, in my observation Apple really views design rights as a matter of principle. About five years ago it even shut down a small iPad lookalike in Spain. That was, by the way, the first time I fundamentally disagreed with Apple on something (I thought the criminal case that resulted from Apple's complaint to customs authorities was over the top, and it was fortunately dismissed later).
Talking about disagreements with Apple in the context of design patents, I wish to clarify something here. There is no question about Apple's leadership in design. Now it looks (to some people, at least) like Microsoft is making its own kind of iMac, though it is technically quite different. My position on Apple understandably seeking to defend the uniqueness of its products has not changed over the years. However, the focus changed on appeal. The higher up you go, the more it's really about general rules that must work for all comparable cases. Maybe 5,000 years ago, or maybe even today in some tribal communities somewhere on this giant planet, kings or elders or priests may adjudicate disputes without being bound in any way to statutory law and/or case law. Then one can decide and opine whatever. But I have three problems with Apple's design patent enforcement when considering the implications and ramifications for others:
Unfortunately, this issue is not before the Supreme Court, but as a former NoSoftwarePatents campaigner and as an app developer I have a huge problem with design patents covering software in the form of non-physical screen designs (and layouts and elements thereof). Such patents should not exist. I believe copyright and trademark law would provide just the right level of protection in that area.
As the Dusseldorf Regional Court noted more than five years ago (when explaining why a decision came down for Apple and against Samsung), Apple's strength is "minimalistic design." It should be obvious to everyone that minimalistic design must be harder to protect with design patents because otherwise such patents would become overbroad. A design patent on a carpet design with a huge number of design elements is narrow; a design patent on a round button below a rectangular screen is overbroad. Breadth also has to do with functional elements: the alternative to rounded corners is damage to people's pockets.
Here, again, it's important to make a distinction between Apple's non-legal merits as a design trendsetter and the problematic legal implications of the level of (over)protection Apple has been seeking.
Taste per se isn't patentable.
Finally, even if something falls within the scope of patent-eligible subject matter, is not too broad to be valid, and an infringement is proven, then remedies must still be reasonable, not draconian. There's the eBay standard for injunctions and there are various principles governing damages determinations, including in many contexts (such as some in which I have always supported Apple) the smallest saleable unit approach. Apple has benefited from those standards on numerous occasions. Fortunately, the position with which it went into the recent Supreme Court hearing was already much more moderate than what it had told the district court and the Federal Circuit.
In some ways, it would be harder for Apple to go after Google now than it was to sue Samsung in 2011:
Even prior to the Apple v. Samsung Supreme Court opinion (which will probably come down in December or January), the position taken by the DoJ and some of what the justices said at the hearing have made it crystal clear that the appropriate "article of manufacture" will have to be determined in future design patent cases if someone seeks a disgorgement of otherwise-unapportioned profits.
In a dispute with Google itself, as opposed to Samsung as a Google proxy, Apple would not be able to benefit from a certain statistically-proven bias of U.S. juries against foreign companies. It would be Silicon Valley Giant v. Silicon Valley Giant. Like a duel on the 101.
A disgorgement of infringer's profits would be further complicated by Google, with most of its business not being in hardware, being able to present to the jury all sorts of overhead and development costs as being related to the Pixel project.
A key lesson from Apple v. Samsung is that Apple suing someone for allegedly making iPhone (or iPad) lookalikes can actually have a positive marketing effect on the defendant, at least in some places. Far be it from me to impute such cynicism to Google, but I wouldn't be surprised if maybe the decision-makers who approved the Pixel project in this form, in addition to seeking legal advice on how to have the most defensible position under the circumstances, thought that a design lawsuit by Apple would be the best thing that could happen to them because it would make even more people aware of certain parallels between the Pixel and the iPhone. That, however, would probably hurt other Android device makers more than Apple.
I have no idea what Apple is doing, but should Apple take legal action in the U.S. or elsewhere, I could understand it. Still I wouldn't support software design patents, overbroad design patents, or draconian and devastating remedies, ever.
About six months ago, the European Commission sent a Statement of Objections (not a final decision but certainly something that puts recipients on the defensive) to Google over the way it controls the Android operating system and Android apps. While there are definitely some parts of the Commission's analysis that I agree with, such as market segmentation (very important in antitrust cases), there's a couple of things that make me (since I'll also release an Android app soon) a bit leary:
The Commission mentions Google's "anti-fragmentation" efforts. If you talk to any Android app developer out there (and I've talked to a number as you might imagine), they'll tell you about how difficult fragmentation makes it to develop and test Android apps. Ever better tools become available all the time. But it remains a huge issue. On iOS (where I'll release my first app) some things are a lot easier just because there is no fragmentation (just a very limited range of different screen sizes and aspect ratios).
What the Commission says in public about its concerns related to "anti-fragmentation" sounds more like a concern over anti-fragmentation serving as a pretext for curbing competition. To the extent that this really is the Commission's focus, I'm fine. But I need to know more about what the remedies (or Google's commitments to settle the case) would be and what impact they'd have on developers like me. I'd like the Commission to make it very clear that some anti-fragmentation efforts are very positive while others may be reasonably viewed as illegal restrictions on competition.
I'd probably be a lot less concerned if the ones apparently funding the official complainants and sometimes acting as complainants themselves were Android device makers as opposed to certain enemies of Google (by the way, Apple does not seem to have any hand in this, at least to the best of my knowledge). At the same time, let's be realistic: it would really be hard for an officially-licensed Android device maker and Google partner to complain. I could imagine, however, that some of them may have told the Commission about certain problems they face when the Commission sent them questionnaires and interviewed them. In a different competition context in which I participated in a conference call with Commission officials and a software company, I noticed that a company was about ten times clearer and more accusatory than in public.
The EU Android case is about the search engine and about what others call an "essential facility" type of theory: device makers need Android, Google controls it and then imposes restrictions that protect its monopoly. It's not about Google competing with Android device makers. Not yet.
Psychologically, I don't believe the Pixel phone does anything to alleviate the Commission's concerns. It won't become an additional official concern anytime soon, but when the game master is a player himself, all sorts of issues come up. The big problem in sports-related competition law is that sports bodies set the rules (including the commercial rules) and usually also act as major commercial operators in the same field, competing with the clubs (and often unfairly). Google's Nexus phones didn't give rise to that concern; they were a showcase effort and Google partnered with a different manufacturer every year. But with the Pixel out there, the Android ecosystem looks more like a FIFA/UEFA type of setup than it used to (after Google divested Motorola Mobility's device business to Lenovo). I believe Google should, in light of the Pixel, give more flexibility to other Android device makers than before (while still ensuring that fragmentation won't make life even harder for developers like me).
Finally, what might Oracle (which just filed an appeal against Judge Alsup's latest ruling) do?
The Pixel runs on Android Nougat. It integrates the Java APIs on an OpenJDK (i.e., GPL) basis. I'm not going to go into the merits and technical aspects of this now because this is already a long post. Suffice it to say that Oracle would have to overcome three hurdles when going after Google over the Pixel:
Copyrightability would have to be determined once again. My position on this one is well-known and I don't think it should be an issue, but there's no doubt Google would fight over it again and the findings from the other case wouldn't be law of the case in a new proceeding. Also, if the new case didn't involve patents, it would be appealable to the Ninth Circuit, which wouldn't be formally bound to however the Federal Circuit interpreted its law. Even another Supreme Court appeal over API copyrightability could happen (last time certiorari was denied, but that could also have been due to the stage of proceedings).
Fair use would come up again, too. Oracle knows by now that juries easily get confused about open source issues in this context, which favors alleged infringers.
Oracle would have to become a GPL enforcer and demand that Google release certain parts of Android on a GPL basis. The legal question would then be, for example, whether Google's key proprietary Android apps are derivative works of (even if only indirectly) OpenJDK. In order to get real leverage, Oracle would probably have to reach the level at which even Google's apps, or at least some other proprietary extensions of Android, would be demeed to fall under the copyleft rule.
I believe Oracle will do something sooner or later about Android Nougat, but my feeling is it will at least want to get the next Federal Circuit decision in the first Oracle v. Google case.
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