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It is irreparable harm considering they can't get back the monopoly/leading market-share effect at this very young stage of the tablet market.

i.e. Sales and profits now is a lot more important than Sales and Money later.

Yeah, but AFAIK this economic model (and the Constitution) was supposed to work by trying to break monopolies, not encouraging them.

You do realize that a patent is a deliberately created, temporary monopoly.

Yes, and that's why I think (most) software patents are a crock of shit, same as most design patents. The very idea that someone can get a patent something like 'a tablet with a metal casing and rounded corners' is revolting.

But then, the whole patent system has been fucked up for umpteen years because of the way lawyers lay out the legalese on most patents. Something as specific as a new protocol to transfer data (say, SPDY) can be massaged into being a vague generic definition ("a binary transmission method designed to make HTTP-like data structures and operations possible in a more efficient manner") that could cover a lot of ground, giving the owner of the patent the power to halt innovation (ZeroMQ could very well fall under the umbrella defined of such 'patent') while giving exactly 0 benefit to anyone.

I'm just waiting for someone cheeky enough to come up with a vague wording for describing a 'wooden and/or plastic object designed with the purpose of holding items and or facilitating common household tasks' (i.e. a piece of furniture) and sue IKEA.

Where would Google be without the PageRank patent to give them a monopoly on search? Don't think many people have an issue with that.

what an absurdly wrongheaded statement, do you really think that Google depended on patent protection to stop others from using PageRank, and even if they did, how could it ever be conclusively proven that PageRank was used by somebody else?

What the hell? How is the PageRank patent not protection to Google? If Yahoo, LiveSearch and whatever other famous search engine just went ahead and ripped off Google then Google wouldn't be the Google we know now... Proving it shouldn't be any more difficult than asserting any patent. The defendant would have to show how they're ranking pages I would imagine, and if there's an infringement, they're found guilty.

"What the hell? How is the PageRank patent not protection to Google?"

Because it belongs to Stanford University, not Google.

Under exclusive license by Google. Basically the same as having the patent yourselves

I know less than little about most things, but wouldnt that m ake search engienes compete more, giving us, the users, better results?

I think there's a fine line where on one side inventors cant net a profit without a time-based monopoly but on the other side of this fine line it's just hurting competition.

Sort of. The average search results would have gotten a little better, but only because Excite/Altavista/etc would have poached some key early employees of Google and walked away with their algorithm, which was Googles key advantage back then. So the big incumbents would be able to use PageRank AND their pre-existing market share to destroy google easily. The huge leap forward in search (and it was a huge leap) would have never happened, because their would be no challengers who could match the purchasing power and market share of incumbents

Google has a patent on pagerank? If their algorithm was patented, it would be open for anyone to read and understand - just not to use. My understanding is their ranking is something they keep a closely guarded secret, and to apply for a patent on it would be silly.

Or was pagerank something they did early on and I'm mixing up two things.

You got it mixed up. They built Google on the (patented) PageRank algorithm, but have since improved upon it to such a degree that the what they currently use bears little resemblance.

Google's secret sauce has a lot less to do with page rankings and a lot more to do with how to do really cheap and efficient data processing.

So, if they had really crappy, but fast search results, they would be just as successful? That doesn't hold merit at all

Don't be silly. I'm not saying search results aren't important; I'm saying they're not difficult. The specifics of Google's algorithm have to stay secret to make it harder to game them, but the real "secret sauce" is the stuff they don't talk much about: custom built networking switches, smart power grids, and clever software like Map/Reduce. I bet R&D spends a lot more on that stuff than on figuring out how to improve ranking order.

But what you said was that the constitution was supposed to break monopolies. No it wasn't.

Doesn't that just mean more money though? I'd agree that the analysis of the damages would get pretty fuzzy at best if you're trying to account for such factors, but it's still ultimately just a loss of money.

That's the problem -- how do you calculate the lifetime value of that? It's not just lost sales, it's a substantial shift in the position of a huge corporation.

Here's another example -- Imagine how different things could be today if the AT&T lawsuits hadn't temporarily paralyzed the BSDs just as Linux was also emerging.

I can't even begin to quantify the cost of what could have happened if the lawsuit hadn't been filed by AT&T.

Can you tell some more detail about this AT&T lawsuit against BSD?

http://en.wikipedia.org/wiki/USL_v._BSDi

This stalled BSD development/adoption for 2 years while the legal status was in question.

And the inverse, where Apple inflicts similar, irreparable harm to their competitors that are using "bogus" patents? Consider Apple is already a market leader, the implications are more damning in the opposite direction.

> Apple has managed to have a bogus patent issued - the patent, as far as I can tell, covers any sort of "search-as-you-type" system

Is this from reading the claims, or from reading the introduction (whatever that's called)?

The patent in question:

http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sec...

I'm bad at legalese, but it seems to pertain to search-as-you-type amongst multiple libraries (songs, texts, emails, etc.)

So, basically what Launchy, Spotlight, Android's 'search' toolbar, even Google's homepage, have been doing for a decade now. Nice.

If you are correct, then Apple obtained this patent before any of these things you mentioned existed. I'd mention On Location as prior art though -- On Location was truly awesome.

Your exact claim has been taken into account, just the opposite direction: "Apple was ordered to post a bond of $95 million to enact the injunction, which would be used to pay Samsung damages if the decision is later reversed."

Oh wow, interesting! Although of course if this really has such a definable cash value, why can't that just be part of the award if Samsung loses?

Damages are not symmetric: the damage to Samsung of a prophylactic injunction might be comfortably converted to a dollar value, while those to Apple might still be "irreparable".

Of course it is.

Apple can't get back lost sales and revenue as a result of patent infringement by their direct competitor.

Of course it isn't.

It's easy to repair: Apple gets paid a fine.

This is almost a classic example of repairable harm.

The harm to Samsung is actually much worse (they are blocked, as opposed to just having to compete), yet the bond is supposed to make them whole.

You don't know anything about the law, but you felt you had to chime in, huh?

>Apple can't get back lost sales and revenue

Unless Samsung was, you know, required to write them a check. For damages. If they lost. Which is how such cases usually proceed.

Sure. If you naively assume that lost sales/revenue is just for the iPhone device itself.

But every lost sale of an iPhone is also one less person within the ecosystem. An ecosystem that plays off each of its elements to drive revenue e.g. iPhone user buys movies which they can only watch if they buy an AppleTV etc. It's borderline impossible to quantify all of the indirect revenue Apple would lose not just now but in the future.

Following from that logic, what about the harm that Apple is doing to the Android ecosystem by preventing the sale of these phones when they are supposed to be sold? If Apple can't prove what it claims, then what of the phones that are not sold in the meantime? Is that equivalent to the value of the bond? Where does that money go? Disclaimer: I am in no way a lawyer, but I think my familiarity with law is about the same as the familiarity of the judge with technology.

Samsung derived the bond amount which did seem awfully low at $96 million.

How many Galaxy Nexus devices do ou think Samsung is likely to sell? It's older hardware.

How is it borderline impossible?

There's a technique pretty much every company that knows what's it doing applies to figure out exactly what you mentioned and it's called downstream impact analysis.

I'm absolutely 100% certain if you're an executive at Apple and you ask your finance department what the downstream impact is of an iPhone sale the finance department will come back with numbers for the profit variance when the customer wasn't already a customer, when they already were and a bunch of other scenarios.

In the words of the court, "The Court finds that the full extent of these losses would likely be unascertainable, difficult to calculate, and irreparable."

And I fully agree that the finance department would be able to calculate the expected profit per customer for today's products. But what about tomorrow's ? And the next year ?

Apple locks in the user at multiple points: apps, movies, TV shows, books, accessories etc.

You're using circular logic. "The court finds theory of irreparable harm to be plausible because the court finds that the full extent of these losses would be irreparable."

OP's entire argument is that the court's finding is incorrect and that's why its a victory for Apple's lawyers -- I think you're severely underestimating the forecasting techniques used, especially in a company as competent as Apple.

The OP did not address this argument, but merely asserted that no irreparable harm would be done because you could simply pay damages. The court has said that calculating damages is impossible.

It doesn't seem to me that incalculable implies irreparable but it's certainly a defensible position.

I'm absolutely 100% certain that the analysis you speak of is an educated guess at best.

I think it is very easy to imagine irreparable harm being done.

There is no such "technique". They can make educated guesses, but that's about it.

If the RIAA can sue Limewire for more than the GDP of this entire planet[1] for damages from file sharing, surely Apple can sue Samsung for downstream damages within their ecosystem.

[1]http://www.pcworld.com/article/223431/riaa_thinks_limewire_o...

I think it's unfortunate that taligent has been downvoted into the negatives, because he (or she) is correct.

How much is market leadership worth? How big of a check would Apple have to write RIM to restore their market advantage? How big of a check would Apple have to write Nokia to put them back where they were in the marketplace 4 years ago?

I'd argue that there is no check large enough to restore a lost market advantage. If Apple won their current market position through innovation, and Samsung is eroding it by taking advantage of that innovation counter to patent law, there's no reasonable amount Samsung could pay to set things to right.

> I'd argue that there is no check large enough to restore a lost market advantage.

I think you're considering the status or intangible satisfaction of being the market leader. That is not what Apple's shareholders are interested in. They are interested in money. If Apple had the choice between getting a check for all the money they would ever earn for all their products and liquidating the company, vs. remaining in business, they would close their doors, cash the check and pop the champagne. And that check would be worth much more than a "lost market advantage."

Now they're probably not going to get such a check. But if not that's because the court will deem they don't deserve it. But the real reason they want this is that it will clearly do much more harm to Samsung than it will diminish their case against Samsung, better yet, they still get to bloody Samsung's nose even if the court eventually rules against them!

Apple hasn't innovated into market leadership for status or intangible satisfaction. They've done it because that's what you have to do to keep those "big checks" rolling in.

If Samsung gobbles up market share, a big check won't bring that back, and a check big enough to account for it would probably bankrupt Samsung (assuming you could ever calculate what that numer would be).

Let's pretend that Samsung drove Apple out of business by rapidly copying Apple's R&D and competing directly on price. Just how big of a check would be required to set things to right?

We can use an analogy instead of hypotheticals. Imagine I've stockpiled grain for the winter. Winter has arrived, and suddenly, so does the army. They commandeer my grain and promise to write a check for its market value. The next spring, I get the check in the mail. Unfortunately for me, my family already starved.

Why are you bringing up such a hypothetical, when clearly Apple isn't anywhere near starvation at all from the impact of the Nexus? If they aren't near starvation, why should they recover the maximum "lost market advantage", if that would only increase the likelihood of them becoming a monopoly?

If there is real infringement, why not offer Samsung the option of licensing the patent at a court-determined price? And shouldn't economic/market-health considerations be taken into play? Current law might not allow for these two points, but maybe they should be considered.

> Why are you bringing up such a hypothetical, when clearly Apple isn't anywhere near starvation at all from the impact of the Nexus?

The analogy was intended to demonstrate that when you purloin (or commandeer) someone else's property, it's sometimes impossible to restore their previous hypothetical future, no matter how much money you throw at them.

Apple may not starve, but they may very well be irreparably harmed.

> If there is real infringement, why not offer Samsung the option of licensing the patent at a court-determined price?

See my grain commandeering analogy for why. Apple doesn't want to license these patents to Samsung, because Apple clearly thinks the temporary government-granted monopoly is worth far more than any reasonable licensing fee.

> And shouldn't economic/market-health considerations be taken into play?

The market seems quite healthy, currently.

> it's sometimes impossible to restore their previous hypothetical future, no matter how much money you throw at them.

And my point is, why should it be necessary under the law to restore their hypothetical future?

The law doesn't presume to restitute the full losses of people whose property is destroyed by others' acts. I don't have the impression the law generally aims to completely undo big violations of others' rights or contractual terms, only to punish or provide partial restitution after the fact; otherwise we'd be seeing big reversals and small startup Davids suddenly overpowering Goliaths who had unfairly crushed them out of existence.

Not that this even applies in this case; Apple is no small scrappy David, and it's relying on imo broken patents.

> Apple doesn't want to license these patents to Samsung, because Apple clearly thinks the temporary government-granted monopoly is worth far more than any reasonable licensing fee.

I meant that the court should compel Apple to offer the licensing option, not that it would benefit Apple to do this. Ideally, though, the court should simply overturn the patents (which I hope is done in the subsequent hearings). Patents on metasearch, linkification and slide-to-unlock simply threaten the rest of the industry.

> If Samsung gobbles up market share, a big check won't bring that back...

This is just the point I'm trying to make. Apple doesn't want market share, so they don't care if it goes away for its own, sake, they care if it goes away if they lose money. That market share has a cash value to Apple that the jury could award them if they win their case.

> my family already starved.

Yes, exactly, that is irreperable harm. Whereas in this case, nobody is starving. Apple is losing some finite amount of money, and some finite potential for future earnings, which they are suing Samsung for and could be awarded in damages if the jury sides with them.

In the limit, imagine Samsung stole the whole market from Apple. The jury could award Apple the total market value of Samsung. That would literally be the value of whatever market share Samsung had "stolen" from them.

Unlike life, market share has a finite cash value.

"If Apple won their current market position through innovation, and Samsung is eroding it by taking advantage of that innovation counter to patent law, there's no reasonable amount Samsung could pay to set things to right."

Let us say that first "If" is held by the judge as a given and that allows for him to deny the same rights to the other party. How does that work at all ?

When one of these gets overturned "there's no reasonable amount" Apple "could pay to set things"..."right.". How is that loss calculated ? Is it calculated at all ?

This automatic assumption after the cry wolf turns to nothing in the end and the plaintiff abused the law and the courts to retain commercial position while trying to cement its stand through jurisprudence.

This is a sad state of things and points to a needed overhaul, if not, it will just go on and on until it breaks in the end. Billions of dollars later, the "leaders" will have chocked everyone else not because of innovation but because of bad legislation that assumes too much at the preliminary stages based on incompetent assertions that cannot be equated like other parts of the law. Yet, here we are.

Shouldn't the plaintiff though be the one to take on that risk?

If the damage of losing market share is truly irreparable, then the court would be doing irreparable harm to Samsung on the basis of Apple's unproven allegations.

As I understand it, a court ruling like this is based on an initial assessment by the Judge that Apple is likely to win, as the patent(s) are currently valid and it appears (to the Judge) that Samsung is violating them.