Samsung to jury: You can't copy iPhone features that aren't in the iPhone | Hacker News Reader

Samsung to jury: You can't copy iPhone features that aren't in the iPhone

cnet.com

31 pointstweakz49 comments

This is particularly interesting because it seeks to characterise Apple as a patent troll (ie, owning patents and enforcing them, or features of them, without actually using the tech themselves).

Apple has had a lot of problems with patent trolls[0] and seems to be campaigning against trolling [1]. This isn't how Apple is usually characterised so the comparison really will sting their pride.

Seems like it might be true though...

[0] http://arstechnica.com/tech-policy/2014/02/apple-top-target-...

[1] http://9to5mac.com/2014/04/03/apple-microsoft-and-others-gro...

Apple is one of the biggest patent trolls in the world (by any of several metrics, the most meaningful in my personal opinion being the total amount of damages sought from infringement of patents not in use in any product). Just google 'bockstar'.

I think there is some conflation of 'patent troll' vs 'non-practicing entity'. The latter is a subspecies of the former. After multinational conglomerates got good at exploiting the (busted) US patent system, more specialized parasites -- of course! -- evolved to exploit it even more efficiently (by not producing anything, nor having any assets vulnerable to counterattack).

But just because you make products doesn't mean you aren't a patent troll. Honeywell and Apple are perhaps marginally better then Myhrvold's Intellectual Ventures... but only because they are patent trolls who also produce things of value (to some people).

Patent-trolling-wise[1], they are the same.

[1]: Hyphenating only the last pair of words in an ad-hoc-compound adjective is not as bad as patent trolling, but still bad, IMO.

Yes, people often think that "troll" can only refer to non producing entity. It doesn't. If we go back to the analogy, fairy tale / fantasy troll would usually fix the bridge and demand toll from anyone passing by. While clearly racketeering, the troll can argue that he added value to the bridge. Same goes for patent trolls. Some are complete parasites, and there are patent trolls which produce some stuff, while being racketeers at the same time.

The common logic here is that racketeers want money for something they didn't really do (the troll didn't build the bridge, some company didn't really make or invent the tech that they demand money for and so on).

Apple can be seen as a patent troll. It doesn't have to mean non practicing entity - it can simply mean patent aggressor who uses patents for anticompetitive purposes. Non practicing trolls are just a subset of all patent racketeers.

> it can simply mean patent aggressor who uses patents for anticompetitive purposes

Then the term is meaningless. Patents exist solely for anticompetitive purposes. That's what they're supposed to do. Patents are supposed to provide protection from competition to promote innovation.

We can argue about what the patent system should look like (or if it should exist) some other time, but to call a patent troll anybody that "uses patents for anticompetitive purposes" is an entirely meaningless statement that completely misses the point of patents in the first place.

No, it's not meaningless. It can have different contexts. In the general sense, troll can mean racketeer. The fact that many trolls are pure parasites (i.e. while being racketeers they don't produce anything as well) doesn't mean that patent aggressors which do produce something can't also be called trolls when they engage in the patent protection racket.

I.e. using software patents for defensive purposes is OK. Using them for aggression in practice is patent trolling or protection racket, and it doesn't matter whether the troll produces anything or not. It's enough to see any real cases of patent aggression to understand that. MS, Apple and the like which do produce stuff but constantly engage in patent protection racket can be called trolls.

Using patents for encouraging innovation isn't the case here, since they come after competition which developed things independently, didn't copy anything from them and so on. They simply want to fight competition using their patents as weapons, or extort money from competitors (like MS does), and threatening them that if they fight some patents, they can pull out more. That's racket in its classic form.

Oh yeah, it is "the best defense is a good offense" strategy... Wait what? It is ok to use them defensively (that is, pull them out if someone threatens to sue you) But you can't use them for what they are actually intended for? That is for protecting your monopoly for a short period of time? A patent holder doesn't "use patents for encouraging innovation" The government provides people with patents, to encourage innovation. But if you give me a patent, I don't have to run around using it to encourage others to innovate. What I can do, is make money on the item I already innovated. And maybe I'll have an incentive to innovate some more. But to call someone a troll for using the patent that way it is intended to be used, because you don't like it, is just plain wrong.

> But you can't use them for what they are actually intended for?

Patents aren't intended for racket and stifling innovation.

> A patent holder doesn't "use patents for encouraging innovation"

Oh, really? Then take a look at the patent law again, and the reason why limited time monopoly is given (as patents). If using a patent prevents and slows down innovation, it goes against the reason it was given in the first place and is usually a good indicator of patent trolling / aggression and otherwise abuse of the patent system, as well as indicator that patent system is broken (or not well tuned).

I.e. normally patents shouldn't exist (monopoly is normally bad). But, they are granted to boost innovation. If results of patents usage is the opposite - something is wrong.

"who uses patents for anticompetitive purposes". So in other words, any party who uses patents for their intended purpose of granting a limited monopoly is a troll?

Is it a monopoly if the person with the limited monoply is not producin anyhing that uses that patent? It's just a non-opoly?

No, who uses patents for unintended purposes. Patents weren't intended for racket and stifling innovation. They were intended for encouraging innovation. However patent trolls use them for the opposite purpose.

To give an example. Let's say company A produces (i.e. invents) something independently of company B. Company B feels greedy, and starts using patents to attack company A. That's not encouraging any innovation - it's completely the opposite. There are many other examples how patents are used for wrong purposes which can be described as trolling.

Don't forget to add Rockstar Consortium to that list. http://en.wikipedia.org/wiki/Rockstar_Consortium

> "It's true that if you don't practice a patent, that doesn't mean you can't collect damages for it"

When an attorney nests negatives three deep, is that brilliance or incompetence? I'm trying to decide.

The clearest way of saying the above is "you can collect damages for a patent, even if you don't practice it." While the two statements may be logically equivalent, they're not rhetorically equivalent. Samsung's lawyer probably doesn't want to start a sentence with "you can collect damages . . ."

Also note: "X doesn't mean you can't Y" is logically equivalent to "can Y . . . even if X." The former phrasing is clumsier, but highlights the idea that things besides X might create a bar to Y. It places an overall negative connotation on Y, while the latter phrasing places an overall positive connotation on Y.

I personally would have said: "it's true that not practicing a patent doesn't prevent you from collecting damages for it." It's not the easiest thing to read, because it just buries the double negative in the phrase "doesn't prevent" but it avoids framing things in the positive.

Glad I wasn't the only one who picked up on that. Usually I'd go with incompetence due to Hanlon's Razor, but given this is coming from a lawyer from a huge corporation, I'd say it's deliberate.

Yes, he's attempting to confuse the jury. It's unlikely to work, but Samsung is out of options.

That's standard practice and what they're paid to do!

"He added that Apple's patents are narrow and cover specific ways of performing tasks, not the entire tasks -- such as universal search or word suggestion -- themselves. And while Apple tried to downplay the role of Google in the trial, Google is relevant, Price said."

To my big surprise I found out that Google is indeed the owner of patent entitled "Extensible search term suggestion engine" [1]. Does it mean we infringe it writing simple AJAX suggestion search?

[1] http://www.google.com/patents/US8515984

You'll need to look at the claims, the part at the end that defines the rights conferred by the patent. Titles just tell you the general area. The USPTO is likely still issuing patents titled "Wheel."

My bad, cited patent actually belongs to Microsoft... Couldn't find any claims you mention.

UK end user here. Is this case really a sensible way to divide up the market share for middle to high end smart phones? I mean what would be gained by the ordinary customer if Samsung lost and decided not to make phones any more as it wasn't worth the hassle?

Am I being naive?

I presume Apple does not want to compete in the low margin part of the market (which I imagine will see the largest growth as the higher end saturates).

Am I being naive?

Perhaps slightly! There are lots of "companies" that have their entire business model made up of copying someone else's IP (trademarks, designs, content). Back-of-a-van Asian DVDs, backstreet "Gucci" bags, etc. etc.

Clamping down on them reduces consumer choice, but that's no reason not to clamp down on them.

Oh yes of course, if only for safety reasons we have to prevent complete knock-offs (UK term) and 'passing off'. But are you really suggesting the huge Samsung slabs that some of my students have as phones are a total knock off of an iPhone (that some of my other students have)?

What I'm thinking is what would be the benefit to people generally of Samsung being basically banned from selling phones in the US? Would people really buy more iPhones or would they just turn to cheaper Android based phones, or to Windows phones by Nokia/Microsoft say? I understand that the US likes its legal correctness and argument, but at the end of the day you want some competition don't you?

You are asking the wrong questions. Samsung isn't being accused of "knocking off" an iphone. They are accused of copying SOME of the functionality of the iphone. Also, this isn't about consumers (directly) AS you are right, if Samsung decided to stop making phones, users would have fewer phones to choose from. It is indirectly about consumers though, as Apple may have never ventured down the path to creating the iPhone if they couldn't patent some of it.

If this holds it would set a really interesting precedent, in that you would be required to be actively implementing a patent to litigate over it.

Not at all. Samsung's argument is not that the patent can't be litigated because it's not in use (in fact they state the opposite). They're merely claiming that they couldn't have "copied the feature" from the iPhone, as apple claims, if the feature never existed in the iPhone. It's a counter to Apple's statements, not a legal precedent.

Exactly. And I think it's a potentially valid argument (without knowing all the details about the case). But, not knowing about a patent, or saying you didn't copy from a non-existent (or existing) implementation of it, doesn't mean you're not bound by it.

Let's say I patent a design for a table, something unique and interesting that's never been done before. Unfortunately, I haven't gotten around to building it yet, or haven't marketed it publicly. You come around after my patent and build and sell a table that is very similar to my table design... even exactly the same in some respects. Even though you may not have known about my patent, and didn't maliciously copy anything, you would still be infringing upon my patent. Even if you just built the table from someone else's parts.

The resolution would be that you either pay me a reasonable license fee, buy the patent, or argue over the validity. For the validity aspect, you either say you had prior art that predates my table design, that some other prior design existed, or that my patent shouldn't have been granted for some other reason.

I worked for a company that invented a novel product but didn't patent it. Some other company came around and made the same thing a few years later and patented it. Personally, I think they knew about our product, but that's not important. They were granted the patent and then proceeded to send warning letters to our customers, saying they were the patent holders and might be calling later to collect license fees. Then, they sent something to us saying, hey, we can proceed with collecting from your customers, or you can license it from us directly and it'll cover all your customers.

We could have gone to court to have the patent invalidated. We had prior art. But, not knowing what prior art they had, and the generally slow nature of that process, and the risk to our customers, we just paid them. It was an annual fee that wasn't too onerous and made it worth it just to pay it.

That is about the trolliest of patent trolling. But, they played their hand perfectly and make a lot of money on that license annually with no real work to get it.

Personally, I think software and process patents shouldn't exist.

Patents are public documents. The intent of the system is that you have a monopoly on something for a set time, but after that, anybody can make it based on those documents alone.

So it doesn't matter if it's in the iPhone or not; it's still patent infringement.

Presumably Apple's argument was "Samsung saw the iPhone and its success and decided to copy" and not "Samsung is infringing on patent XYZ". The difference between those two arguments probably means a lot in a jury trial. Particularly in this case that already has a history of jurors misleading themselves based on emotional or factually incorrect arguments[1].

[1] http://www.groklaw.net/article.php?story=2012082510525390

But copying the iPhone isn't illegal by itself. It's only illegal if they violated a patent in the process. So why is it necessary to even look at the iPhone? Shouldn't the question be whether Samsung's phones violated Apple's patents?

The question should be that but they were arguing for the jury, which if the last verdict is any indication will tend to have a tenuous grasp of what they are deciding on. On the last trial the jury delivered an inconsistent verdict in record time, which it then had to amend, and then the jurors started giving interviews where they basically admitted they went along with the foreman's opinion because he was a patent holder. Even though he totally misrepresented patent law and argued that the prior art wasn't valid because it was from a different type of hardware.

This is one of my big problems with the jury system. Perhaps there should be a hybrid system where a judge (or other disinterested, yet informed, third party) participates in order to ensure that the facts are not distorted.

I think that's actually what happens in the US. The judge will give particularly detailed instructions (the original trial had a 109 page manual) and the verdict is actually a structured response (which is why they were able to give an inconsistent verdict). The system tries to do this properly but then the jurors are swayed by the emotional arguments and there's not much you can do about it. In this case maybe forcing them to deliberate on individual arguments would help. From the interviews they basically backtracked from "we think they're guilty" to "how do I fill out this damn form", negating the value of the structure that was in place.

If Apple is saying "you violated patent XYZ by copying the iPhone" but the iPhone doesn't implement anything to do with patent XYZ, it might be hard to convince a jury that any actual patent infringement happened. Of course reading some of the comments here, few people seem to understand this, so it might be easy to convince a jury.

Those arguments should only affect the damages, not the finding of infringement.

Making them particularly important. I'm sure Samsung wouldn't mind a finding of "yes you infringed a few patents but nothing that's actually on the iPhone". How valuable can a patent be if Apple doesn't even use it themselves in their competing product?

They make several separate claims. The claim that they couldn't have copied Apple is a counter to claims made by Apple that they saw it necessary to copy the iPhone to compete. Separately they claim that they're not infringing on the patents, and that Google invented the technology in question first.

Highly doubt they went and looked at the patent first and thought "Hey this would be a sweet feature on our phone"

Doesn't matter. If you're the first one to get a patent, it's all yours. There's no provision in the law for independent invention.

I find these sort of arguments amusing. Engineers are routinely told to never read patents (because this policy is seen to mitigate the risk that any potential future infringement will be considered willful infringement).

When engineers are told that they should not read patents under any circumstances, you know the entire system is trash and the premise of it laughable.

By copying the feature from the iPhone, though, Apple really means copying the feature from their patents. Like, if it's something Apple has on the iPhone, but isn't patented, then it doesn't get any patent protection.

Actively practicing the patent should be required to hold the patent but unfortunately it's not, and a court ruling can't change that.

Patents are about owning the idea, even if you don't have the means to act on it. Car window wipers were a great idea, but the guy who first had it didn't have the $$$ nor connections to actually put them on cars; the car makers thought it was a great idea and implemented it without paying him ... the result made for an interesting documentary.

This isn't how it works.

You have to be able to practice the patent, but you don't have to practice it.

I had 'slide to unlock' phone a year before iphone... what a moron would go to court about such a triviality? isn't it all because apple guys have tiny weenies and seek to compensate for it in the court so that someone would say they are cool and 'innovative'?

> apple guys have tiny weenies

When there is an article about Apple vs Samsung, the quality of HN really degrades...

Seriously, now, can't people look back. Soon after the iPhone, Samsung created a phone that looked quite close in presentation. That was a cheap move by Samsung, most likely not illegal.

Anyway, that pissed Apple, probably because they were quite close partner at the time, and they went against Samsung with everything they got, including the trivial. That's how it is done, nothing specific to this case. Of course, that's puzzling that some of the weaker claim managed to stick for so long, but then again, that has been the subject of many many articles.

That's it. If Joe Average didn't have a phone in his pocket, qualifying him as a legal expert, there would never have been the sort of media circus we are seeing and both companies would have calmed down.

This whole affair is like the poster child of a storm in teapot.

I consider patent wars a storm in a teapot... cheap moves to abuse the patent and legal system in order to inflict maximum damage to comepetition. I think anyone who had a chance to use android and ios would say they are different... again - why are they suing samsung? samsung is using android... because every phone that is not apple's is either android, wm or a feature phone. So what was samsung's fault exactly that it got sued? "we will sue you, because we can"? That was a rhetorical question...

Some will say that Apple chose to sue Samsung rather than HTC or whomever else uses Android, because Samsung are their biggest competitor. ISTM that the real question is why they didn't sue the company that created Android. The answer that comes to mind is that it would look ridiculous to sue Google over a search patent.

EDIT: ha!

Google might be able to weasel out of a patent suit because they don't sell Android or because phone vendors might modify Android to remove the feature in question. With Samsung it's easier to identify specific infringements.

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