By Greg Mills
Tech news is full of various court and trade commission news these days. Apple and Samsung seem to be getting most of the attention. The two big pictures I come away with are that:
Samsung, despite excellent legal protection is getting slammed because they really did copy Apple’s devices so “slavishly” there is no adequate legal defense.
2. The second major issue is that Apple is getting shafted by the U.S. Patent Offices’s lousy work product.
Samsung has been hit with numerous legal decisions that prove to the satisfaction of any unbiased observer that Apple was absolutely right to sue them and major judgements against them are likely to stick, in some form, after the dust settles. Samsung has cried loudly that Apple is “uncompetitive,” simply because they are defending well defined intellectual property that was invented at Apple. Apple is seen as moving away from Samsung for electronic parts as fast as possible, as further punishment. Bad Samsung.
Faulting Apple for suing Samsung and the other Android handset makers is a misunderstanding by many who think incorrectly that something as revolutionary as the Apple iPhone ought to be fair game all. That notion is wrong. Apple didn’t just decide to sue the Android handset makers because they had too many attorneys on staff. If your house was burglarized would you be unfair to the burglars if you called the police? Apple was robbed. Just what was stolen and what the value of the intellectual property was are the questions being hashed out at this point.
The other side of the coin is the fact that patents issued by the PTO are said to be “legally presumed valid” until found invalid in Federal court or at the PTO in what is called a “re-examination.”What that boils down to is that issued patents are not all valid. The process of “examination” is the legal process where both the inventor and the Patent Office examiner search the records to confirm that the claims of a pending patent are “novel.” Novel means new. Only new technology is patentable.
A common legal defense for both Apple and its competitors in a patent infringement suit is to challenge the validity of the patent they are accused of infringing. A second defense is to claim that there actually was no infringement of the patent anyhow, just in case it turns out to be valid. Both prongs of this defense have to play out before the issue of damages is even addressed.
Damages are available when a profit has been made using the stolen technology. The greater the profit the greater the potential judgment. Samsung has made billions of dollars using Apple’s technology, and Apple will very likely recover some pretty nice damage awards. The long term effect will likely be a royalty settlement where the Android camp pays Apple an agreed amount for each phone they sell. Apple may reserve the right to not license certain technology to anyone to preserve the unique look and feel of iOS devices.
HTC already settled with Apple as it has decided it is better to pay than get sued into the ground. In business, uncertainty is a risk that can not be ignored. Samsung getting roasted to “well done” in Federal court late last summer certainly gave the Android handset makers heartburn. If Apple could nail Samsung despite the best legal defense available, what chance would they have when their case comes up? Apple has similar suits in the queue in Federal courts for each of them to consider.
Then, after the massive win in court, two of the patents Apple used to nail Samsung have been preliminarily invalidated by the PTO. That means that upon a full re-examination by the PTO, there is a possibility that prior art existed at the time the patents were issued in error, that proves that the Apple patents was covering technology not novel and, thus, not valid.
Obscure patent art has been presented that might make the Apple patents worthless. Statistically, the chances are that at the end of the re-examination process the patents will be slightly amended to be valid or be found to be fully valid indeed. A more unlikely scenario is that every single claim will be found invalid at the end of the re-examination process and appeals that are sure to follow. What this does is further delay the day of judgement for Apple.
The conclusion I make is that Samsung deserves to be punished, Apple deserves to receive significant damages and large future royalties and that the PTO is functionally broken.