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Print 71 comment(s) - last by Cheesew1z69.. on Feb 20 at 8:22 AM

Apple looks to score a second ban on Samsung's Android smartphones, shortly

[Note: Invalidity proceeding is carried out in German court, so this ruling may be struck down.] 

Well, we guess it was bound to happen sooner or later -- a court has actually bought Apple, Inc.'s (AAPL) claim to have "invented" the swipe unlock -- and in fact banned a competitor's product based on it.

Not surprisingly, that court happened to be in Germany, which is basically the only European Union country that has bothered to humor Apple or its Android adversaries legal war.

Apple holds a couple of patents internationally on the swipe unlock:

Apple unlocking patent
Apple is the master of unlocking, having received two patents on the simple gesture.
[Image Source: Patently Apple/USPTO]

You can even see late Apple co-founder and CEO Steven P. Jobs bragging about the feature back in 2007:



But there's only one wee problem with Apple's patent and it's efforts to go "thermonuclear" on Android and "destroy it".  Apple lifted the feature from a competitor.  It did not invent swipe unlock.  It was not even the first to sell a product with swipe unlock.

Neonode Inc. (NEON) in 2005 launched a phone called the N1m, which had a virtually identical unlocking feature, albeit with a different graphic.  You dragged the lock and your phone unlocked.

Neonode n1m
Apple lifted the unlock feature from NeoNode. [Source: FOSS Patents]

Unfortunately for Motorola -- the victim of Apple's successful swipe unlocking suit -- Judge Dr. Peter Guntz was apparently clueless of Apple's legal trolling and the fact that swipe unlock was introduced two years before Apple ever filed for its patent (EP1964022).  

[UPDATE]
So a point of clarification.  As pointed out by Theoz, the judge was not obligated, nor allowed to look at Neonode's prior art, given that Apple did not list it on the patent.

That said, a December FossPatents blog asserts that the Judge indeed knew about the Dutch judge's decision to strike down the infringement claim, on grounds of prior art.

In the Netherlands, invalidity can be ruled during an infringement trial.  In Germany this proceeds via a separate track [source; PDF].

However, FossPatents reports that German judges can narrow or widen the scope of the patent, and further states that Judge Dr. Peter Guntz chose a broader interpretation for Apple, versus a colleague in a nearly-indentical claim against Samsung:

Mannheim is reluctant to stay patent lawsuits on the grounds of suspected obviousness of a patent over prior art, which would be useful to Apple in this case, but last week, at a hearing on an Apple lawsuit against Samsung, Mannheim-based Judge Andreas Voß appeared inclined to interpret the patent more narrowly than his Munich-based colleague today. Motorola and Samsung have different slide-to-unlock implementations (in fact, each company has at least three implementations all by itself), so the infringement analysis isn't directly comparable, but I heard both courts' views on how to interpret the patent claims and Munich's take is more inclusive.

Further, as the FossPatents blog points out, Judge Dr. Guntz could have ordered a stay on the patent trial, until the invalidity trial concluded.  While German courts are typically wary of doing this, given the Netherlands ruling and the clear-cut case for prior art, it would seem that this would be fair -- albeit unusual -- path to take.

But Judge Dr. Guntz did not do this.

Again, it's important to get the story precisely right, but in this case the accurate picture is actually worse for Judge Dr. Guntz than our initial impression that he simply did not know about the prior art.

The Judge knew about the prior art, yet purposefully chose not to apply either of the methods at his disposal -- either narrowing Apple's claim (not based on the prior art, mind you, but on the interpretation of the patent itself, as his colleague did) or staying the trial until the invalidity proceedings wrapped up.

In purposefully ruling against Motorola on a violation he knew to be likely invalid, it seems far more unproper and unjust than if his decision had been based on simple innocent ignorance.

[/UPDATE]

And apparently he also didn't realize how silly it was to claim ownership of a gesture control that would take minutes for an experienced programmer to make.  NeoNode never bothered to patents its invention or sue anybody -- after all, it seemed so obvious. 

[UPDATE 3]

Neonode actually does own a patent on swipe-to-unlock, it just hasn't sued anybody -- yet.  I missed this during my initial search of Google Patents and the USPTO website, but a kind reader sent it my way.

[/UPDATE 3]


For now two Motorola handsets are permanently banned in Germany.  And Apple is also suing Samsung Electronics Comp., Ltd. (KS:005930), hoping to ban their phones for the same feature.

[UPDATE 2]

It appears a fix may prevent an injunction from taking hold.  According to CIO Today, Motorola has a fix ready to roll out, which will replace the infringing feature. 

This should buy it the time it needs to invalidate/narrowed Apple's slide to unlock work, which will almost certainly be invalidated or narrowed, assuming the German court gives Motorola and the defendant in the other unlocking lawsuit, Samsung, a fair trial.

[/UPDATE 2]

Motorola -- whose acquisition by Google Inc. (GOOG) was made official this week by the European Union -- is likely to appeal the Munich Regional Court's decision to the Düsseldorf Higher Regional Court.  If it loses -- and if Samsung looses -- Apple could be granted a local monopoly on smartphones, or at least force Android to drop a ubiquitous key feature most customers take for granted today.

The only good news for Motorola is that it's already scored a ban on the iCloud, and a ban on the iPad/iPhone that is set to resume soon too, after a brief stay.  The German court system banned Apple's products after Apple refused to pay Motorola for its 3G patents, claiming they were invalid.

What do you think?  Do you think the German justice made the right call?

Source: Foss Patents



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This article is over a month old, voting and posting comments is disabled

Simple design, really...
By Salisme on 2/16/2012 7:25:01 PM , Rating: 5
RE: Simple design, really...
By sprockkets on 2/16/2012 8:17:49 PM , Rating: 5
I like this one better :)

http://i.imgur.com/LAquk.jpg


RE: Simple design, really...
By macdevdude on 2/16/12, Rating: -1
RE: Simple design, really...
By 2bdetermine on 2/16/2012 10:08:24 PM , Rating: 2
Calm down dude! Go swipe ya behind with your iCrap devices.


RE: Simple design, really...
By RicheemxX on 2/16/2012 10:19:51 PM , Rating: 5
quote:
Apple invented the swipe unlock on the smartphone


No what Apple did was write a well written patent for a previous design, replaced the words computer, mobile device (whatever) with smartphone and was granted a patent based on someone else's prior work. Almost all these patents Apple is suing under are based on one thing and one thing alone. Platform!

Google knew this was coming. They've already told devs not to rely on the swipe unlock much the same they are ditching anything else that could be misconstrued as apple "innovations"


RE: Simple design, really...
By techyguy on 2/16/2012 10:49:06 PM , Rating: 5
I'm sorry you can't be banned. There is prior art that shows that banning users on websites existed before Dailytech.


RE: Simple design, really...
By DoctorBeer on 2/16/2012 11:03:46 PM , Rating: 3
rofl, I love kids when they attempt to act smart. Keep it up little one.


RE: Simple design, really...
By FITCamaro on 2/17/2012 8:34:23 AM , Rating: 1
Yes because swipe unlock on something other than a smartphone is so different than on a smartphone. Under your logic, I guess the guy who put a lock on a car door invented something totally new compared to the guy who invented the door lock for your home.

You idiots amaze me in your "genius".


RE: Simple design, really...
By retrospooty on 2/17/2012 9:35:26 AM , Rating: 2
"Apple doesn't claim to invent unlocking all things. It claims to have invented a touch unlock of a SMARTPHONE."

So basically, copying others is OK when Apple does it. If others copy Apple its illegal. Ya, your not a little one sided there at all.


RE: Simple design, really...
By The Raven on 2/17/2012 11:34:38 AM , Rating: 1
quote:
It claims to have invented a touch unlock of a SMARTPHONE. That's one thing.
Umm...did you even read the patent link you posted? Click it, ctrl+f "smart" and you get nothing.

So no it is not "one thing".

The other funny thing is that it took 7 geniuses at Apple to "invent" this thing that didn't even need inventing.


RE: Simple design, really...
By Cheesew1z69 on 2/17/2012 1:26:01 PM , Rating: 1
God, you really are retarded....


RE: Simple design, really...
By Wolfpup on 2/18/2012 2:35:19 PM , Rating: 1
LOL...oh my gosh, so you think "sliding to unlock" is different if it's on one type of device than if it's on a device with a different name?

Good grief...this is hard to believe it's a real post.

Not to mention, even if this wasn't prior art, which quite obviously it is, and I think there's a serious argument to be made that even just duplicating a feature from the real world makes it prior art...

But even if that wasn't the case, who is it benefiting if companies can't copy from and refine things from each other? They do so all the time, and it makes our products BETTER.

Ironically, I don't even LIKE slide to unlock. I want to start using my device immediately like I could on my Palms, not have to hit a button (which only works at best 50% of the time on the first button press), then slide, THEN have it load.


RE: Simple design, really...
By piroroadkill on 2/20/2012 5:02:50 AM , Rating: 1
I, uh, have an Android phone. I feel nothing. I don't care.

You know why? Because it's a phone. I have more important things to worry about.


RE: Simple design, really...
By Strunf on 2/17/2012 7:36:00 AM , Rating: 2
That was brilliant!


RE: Simple design, really...
By masamasa on 2/17/2012 11:13:15 AM , Rating: 2
Hah...Classic!


FRAND vs. Moronic
By nafhan on 2/17/2012 9:06:26 AM , Rating: 4
So... the patent situation right now is:
A) Create something innovative and incredible that an entire industry must use = you are legally obligated to license it under FRAND terms.
B) Patent something obvious = embargo all devices which make use of the concept.

Therefore, patent spamming is more important to businesses than original groundbreaking research! Does this seem crazy to anyone else?




RE: FRAND vs. Moronic
By Tony Swash on 2/17/12, Rating: -1
RE: FRAND vs. Moronic
By JasonMick (blog) on 2/17/2012 11:11:26 AM , Rating: 4
quote:
Nobody is obliged to seek FRAND status for any particular invention or patent, it is done wholly voluntarily. The reason a company might offer a design or patent for FRAND status is one based unsurprisingly on commercial calculation, if your design is adopted as a FRAND standard then it is likely that it's use will become widespread across your industry...
I agree with some of your logic about the financial tradeoff of ubiquity v. differentiation. It's true FRAND is misunderstood, often. Making a FRAND patent is hardly an exercise in charity.

But Tony, you're missing the fact that Apple refused to pay Motorola for its FRAND patents.

Its basic logic, is "We're not going to accept these patents everyone else says are standard. So we're not paying you."

************************************************* ****************
If everyone practiced that kind of abusive logic, FRAND licensing would be USELESS.
************************************************* ****************

And you're also missing the fact that Apple has patented some incredibly simple things. No matter how you dussy it up, do you really think patenting a slide-to-unlock gesture, which mimics time immemorrial slide locking should be patentable?

I'm willing to wager you're going to say that Apple is just exploiting a system that's broken and its not Apple's fault the system is broken.

That may be true to a degree -- but do you really see any other company in the smartphone space (besides Samsung perhaps) exploiting the system to this degree? Or attacking everyone else in the industry to this extent?

Why couldn't Apple just push Motorola into a licensing agreement a la Microsoft, rather than seek a ban?? At least then it would be LESS abusive.

To be clear I have far less with Apple patenting its swipe unlock (although it should be a design patent , not a technology one ). But I have a big problem with the SCOPE, that both Apple is seeking and which the judge is applying to the patent.

The patent should only present a very narrow DESIGN claim -- the creation of a unlock UI graphic that acts as an unlocking two point track, block slider w/ arrow, gray color, etc.

But to claim invention of all sliding gestures on the lock screen is just flat out abusive and anticompetitive. That's where I begin to take serious issue with Apple's corporate policy.


RE: FRAND vs. Moronic
By Tony Swash on 2/17/12, Rating: 0
RE: FRAND vs. Moronic
By Cheesew1z69 on 2/17/2012 2:04:05 PM , Rating: 2
quote:
Apple are currently taking legal action
Gee, what a surprise!

/sarcasm off


RE: FRAND vs. Moronic
By sprockkets on 2/17/2012 3:26:04 PM , Rating: 2
quote:
But Apple was never offered a patent under the FRAND system.


Since apple and moto are suing each other across the whole world, I can't keep track of who did what.

But in Germany, Apple was offered FRAND terms back in 2007, but they wanted a provision to later prove them invalid. Moto said no, sued, and won.

Here in the states, who knows. Your posting about how they revoked the Qualcomm license happened just a month ago. Whether they did this as retaliation for something is not clear, but isn't lawful.

Of course, the fact still remains: Apple is a douchebag ran by a douchebag who learned from the best douchebag there was.

And

Apple is Doomed TM


RE: FRAND vs. Moronic
By testerguy on 2/17/12, Rating: 0
RE: FRAND vs. Moronic
By Cheesew1z69 on 2/17/2012 4:07:15 PM , Rating: 1
quote:
Unlike what the uninformed Jason Dick says
You look more idiotic each time you call him this. Second, you call him uninformed, when you yourself, have no clue what happened outside of what Apple says. You don't work for either of these companies so you have NO idea what is going on behind the scenes. You can speculate all you want, but when you try to pass it off as FACT, you look like an idiot. Not that you don't every time you post anyway.


RE: FRAND vs. Moronic
By testerguy on 2/20/2012 7:13:53 AM , Rating: 2
And you provided... what, exactly, to the discussion with this irrelevant and uninformed post?

I, just as anyone, can read and research, clearly I do - and working for one of the companies involved is not necessary to do this.

When I am stating facts, I believe that is perfectly clear. When you, try to make claims about what I know, and try to suggest that because I don't work for a company therefore I can't know more than Jason? You make a mockery of mankind.


RE: FRAND vs. Moronic
By Cheesew1z69 on 2/20/2012 8:22:55 AM , Rating: 2
quote:
When I am stating facts
No,they are opinion....big difference.


RE: FRAND vs. Moronic
By sprockkets on 2/17/2012 5:50:20 PM , Rating: 2
quote:
Apple wanted to preserve their (very normal) right to challenge the validity of the patent in the first place, not a 'provision to later prove them invalid' - which is very misleading.


No you don't - that's like saying let's agree to pay x amount of something, but wait till I rule it invalid so you get nothing period.

To quote ars:

quote:
Apple apparently made an offer to license the patent on FRAND terms going forward. But the matter was complicated by the fact that Apple's agreement included a clause that would allow it to try and have the patent invalidated if Motorola tried to seek damages for past infringement over and above the agreed FRAND rate. Apple is in fact contesting the validity of the patent in suit in another federal court in Germany. Obviously it doesn't want to have to pay for infringing a patent that might not be valid. Unfortunately, the issue of past infringement of standards-essential patents hasn't previously been addressed in the relevant cases in Germany. As Motorola's legal team successfully argued, if a patent is infringed without a valid license, there should be some punishment in the form of monetary compensation. While competition law may require patent holders to honor FRAND agreements and offer a license going forward, the court agreed that past infringement should be treated differently.


RE: FRAND vs. Moronic
By testerguy on 2/20/2012 7:07:52 AM , Rating: 2
quote:
No you don't - that's like saying let's agree to pay x amount of something, but wait till I rule it invalid so you get nothing period.


It's not like that at all.

It's like if you get a speeding fine. You agree to pay it, but you make it clear that even though you're paying it in case it was correct to be issued, you reserve the right to CONTEST said speeding ticket, because you believe it to be unjustified. In other words, licensing the technology to cover yourself legally, but keeping the right you have all along to find out if you actually SHOULD be paying it - which is exactly in line with what you posted (which I've already read).

What you posted confirms that Apple offered Frand rates going back and going forward, but that it reserves the right to MAKE SURE that it legally has to pay these licenses. I don't see any problem with that whatsoever? Furthermore, the article shows that Apple will only challenge said historical rates if Motorola requests ABOVE-FRAND rates - something they should arguably not do - and clearly something which would have to be challenged - since only a court could decide how MUCH over FRAND rates Apple should have to pay, if any.

The fact that Motorola demand more money for the past infringement depends on the fact that THEY CLAIM but APPLE DISPUTE that Motorola offered FRAND rates to Apple back in 2007. Apple contends they were NOT Frand rates. Furthermore, even if the court decides that Apple DOES have to pay above FRAND-rates because it's a historical payment, it probably wont be at the 2.5% that Motorola demand. And for the icing on the cake, Motorola is saying that it REFUSES to license at FRAND rates going forward until their demand to receive ridiculous levels of compensation is agreed to, or until the court process works out the appropriate amount. The effect of this is in direct breach of their FRAND obligations (since licensing going forward has no bearing on their historical rights) - and the additional effect of this is that it causes a ban on devices - something that both Microsoft and Apple have said they will NEVER seek in ANY cases involving FRAND. Google has made no such commitment, and may well get into trouble for it.

So, basically, instead of trying to get the money they are owed (which they can do whilst still licensing FRAND patents going forward), Motorola are trying to get devices banned over FRAND patents - and this is highly anti-competitive and against the terms of the FRAND agreement. First, they give Apple an offer they would never accept (after, by the way, discriminating against Apple by withdrawing the cascading license they give to Qualcomm). Second, they sue them later on for not accepting. Thirdly, they demand ridiculous amounts of compensation. Fourthly, they use ridiculous demands and Apples refusal thereof to try and justify banning devices.

Sorry but that couldn't get any worse from a consumers point of view, and it's only blind Apple hatred that leads you to any other conclusion. If Apple were doing this with FRAND patents you would all have a fit.


RE: FRAND vs. Moronic
By nafhan on 2/17/2012 3:06:45 PM , Rating: 1
You're correct that FRAND status is voluntary. It's how large corporations ensure they get something out of industry-wide adoption of standards they developed while also providing reassurance to those that adopt the standards that the rug won't get pulled out from under them. It's supposed to be a reasonable way to balance things between those who developed the tech and those who could benefit from using it.
quote:
It could offer the slide to unlock patent as a FRAND patent
"Slide to unlock" doesn't need to be licensed under FRAND because it shouldn't have been patentable in the first place. The patents system has issues. If you disagree with that, please explain why "slide to unlock" was so revolutionary. It's absolutely possible that I'm missing something, and I'd love to hear your opinion on it if I am.


There is just too many levels of wrong here.
By sprockkets on 2/16/2012 8:30:47 PM , Rating: 5
Hey kids! Remember the original patent for slide to unlock, here in the US and abroad? Funny story, apple sued android makers over it, not because there was a slider to unlock the screen, but because android innovated a security method of locking the phone by drawing a grid .

But this is apple. At apple, they innovate, and that includes how and what they sue for.

So google changes the unlock gesture scheme on Honeycomb so as to change it from apples significantly.

What does apple do? Goes back to the patent office, files an even broader patent on slide to unlock, gets it granted a few months ago, and now sues on it.

The reason is obvious: The Moto Xoom was deemed not infringing in this case. When the corresponding EU patent gets granted, they'll solve that "loophole."

And it gets "better" : Apple is now suing Samsung over EVERYTHING in Germany, every tablet, every phone, even the just released stuff with even more patents. Of course, it's just the Android phones, because WP7 obviously doesn't have a slide to unlock feature (it does).

This is insane. They just sold 37mil freaking iphones in 3 months, and can't make any more. WHY, why must they do this?

"Because I'm Steve Jobs, and I'm going to destroy Android."

Oh.




By overlandpark4me on 2/16/2012 9:08:02 PM , Rating: 5
Looks like God got a little tired of Job's screwing over other companies.


By masamasa on 2/17/2012 11:14:45 AM , Rating: 2
Jobs is a dick. Eat dirt you douchbag.


By The Raven on 2/17/2012 11:42:02 AM , Rating: 2
quote:
So google changes the unlock gesture scheme on Honeycomb so as to change it from apples significantly.
...from apples...to oranges? ;-)


Forgetting
By Shadowself on 2/16/2012 9:07:00 PM , Rating: 5
What everyone seems to be forgetting is that a judge only rules on the case presented before him/her.

The judge was never pushed (as far as I can tell from what I've read about this) by Motorola to rule the patent itself invalid. Motorola did not even really attempt to present a convincing argument that the patent should be killed in and of itself. This is/was pure stupidity on Motorola's part.

Would they have won if they had? Maybe, maybe not. But they should have pressed hard -- very, very hard -- for that by showing lots of prior are and putting forth that it is a simple underlying concept of virtually all smart phones.

The judge ruled on the case presented to him. That is as it is in courts. A judge can't just arbitrarily say, "I know some odd bits of fact you didn't present, and I'm going to rule based purely on the information in my head." He'd get overturned in a heartbeat if he tried that.

Moto screwed up here, IMHO. If you want to really blame anyone on this blame Moto. Now it will be harder (but probably not impossible) for everyone else to not get hit by Apple.




RE: Forgetting
By Strunf on 2/17/12, Rating: -1
RE: Forgetting
By sviola on 2/17/2012 8:57:27 AM , Rating: 2
Well, not really. A judge can use his knowledge of prior art to judge the case. He does not rely on what the plantiffs and defendants present.


RE: Forgetting
By JasonMick (blog) on 2/17/2012 10:46:55 AM , Rating: 2
quote:
Well, not really. A judge can use his knowledge of prior art to judge the case. He does not rely on what the plantiffs and defendants present.

Exactly. @TS, I'm unsure of the precise judicial guidelines in Germany, but in most jurisdictions the judge can rule a patent is likely invalid -- WITHOUT the patent office -- when obvious prior art is presented.

To be fair perhaps Motorola's attorneys just flat out sucked and did not show the NeoNode phone or other pertinent examples that predated Apple's work. Or maybe for some reason German judges do not have the ability to base their ruling on prior work, unlike other regions.

Obviously Apple is the main one to blame here for anticompetitive patent trolling.

That said, I KNOW that the judge could have narrowed Apple's patent scope. Motorola's grid unlock is quite different from Apple's slide unlock. The judge could have narrowed it to only apply to a two-point tracked slider whose graphics resembled those on the iPhone. Then -- with merely common sense, and without even prior art -- they could have ruled Motorola not in infringement.

My point is that even if the judge did not know and was not made aware of the prior art, they could still have applied common sense to narrow the patent.

Failure to do so shows the judge was as out-of-touch with reality (or perhaps, as some have suggested, influenced by Apple fiscally) as Apple is greedy/abusive/anticompetitive.


RE: Forgetting
By Theoz on 2/17/2012 12:43:21 PM , Rating: 2
If unsure, don't write a story bashing them for not considering art that they cannot consider because this was a lawsuit only related to infringement. Validity is a separate proceeding in Germany, so Motorola will still get its chance to invalidate the patent.

Failure to review the prior art in this case doesn't show anything. The judge is deciding one issue at this proceeding: are the claims that apple asserts infringed by the device? That's it. Moto will get its chance to invalidate at a later time. Research first, write second please.


RE: Forgetting
By testerguy on 2/17/12, Rating: -1
RE: Forgetting
By Cheesew1z69 on 2/17/2012 3:55:55 PM , Rating: 1
Oh look, it's Apple's bitch boy...


RE: Forgetting
By JasonMick (blog) on 2/17/2012 4:07:46 PM , Rating: 2
quote:
If unsure, don't write a story bashing them for not considering art that they cannot consider because this was a lawsuit only related to infringement. Validity is a separate proceeding in Germany, so Motorola will still get its chance to invalidate the patent.

Failure to review the prior art in this case doesn't show anything. The judge is deciding one issue at this proceeding: are the claims that apple asserts infringed by the device? That's it. Moto will get its chance to invalidate at a later time. Research first, write second please.

Did you not read anything I just wrote???

It doesn't matter if the judge could question the validity. They could have used common sense to determine that the scope of the Apple patent should be narrowed. German law ABSOLUTELY allows judges to rule on patent scope.

I know this for a fact.

If they were incompetent in terms of understanding the electronics industry, then they should not have been reviewing patents for it.


RE: Forgetting
By Theoz on 2/17/2012 4:34:15 PM , Rating: 2
I read all of it. You are very wrong.

quote:
I know this for a fact.

Try substantiating a fact for once. Any changes to patent scope come in the invalidity portion of the trial, not the infringement portion. It didn't take me long to find this fact substantiated by this presentation from a well known law firm:

http://www.fr.com/files/Uploads/Documents/Patent%2...

See slide 9. The amended claim sets (claim narrowing) come in the invalidity portion of the suit, not the infringement portion. Likewise, see slide 11 wherein it is stated that claim construction is very broad. Also, note that "prior art can only be used for claim construction purposes, if this prior art has been discussed in the patent specification. " Therefore, if Apple didn't discuss the prior art in their patent, it can't be used in the infringement portion to rule on claim scope!

Again, you completely misreported this story due to a lack of research and general knowledge about the subject. I await the edits to the story to make it less misleading.


RE: Forgetting
By JasonMick (blog) on 2/17/2012 6:49:35 PM , Rating: 2
quote:
A Defendant may try to use any possible hint in the claim language
that the scope of protection is limited to a preferred embodiment
described in the patent specifiction.

First, thank you for the link, it was quite educational. You should be pleased, I have made some updates to the piece.

But based on my research, I think you missed two crucial points.

1. The Judge -- aware of the strong invalidity prospects -- could have narrowed Apple's patent scope. Yes, you are technically correct, prior art is not supposed to affect validity during the infringement portion. But according to FossPatents, the scope was narrowed in the Samsung case by a Judge, who Florian Mueller hints may have been influenced to do so by the Netherlands ruling:
http://fosspatents.blogspot.com/2011/12/photo-gall...

2. Scope aside, the German judge also has the authority to offer a stay until the invalidity procedure complete. Again, despite knowledge of a strong invalidity prospect, he chose not to stay this trial and instead deliver a likely premature and punitive ruling on Motorola.

Again, the fact that he knew about this and chose to slap Motorola with a punitive ruling anyhow, is far worse. It takes this ruling from seeming like innocent ignorance to seeming like willful maliciousness.

Again, I may have missed the point about the validity, but you missed (or did not clearly state) that the German judge had these options -- particularly the very cut and dry #2 option.

In doing so, you paint the judge's decision in a rosier light, than it truly was in.

In reality it appears that the judge made a ruling he knew would hurt Motorola, and a ruling he knew was ultimately wrong (and would be invalidated).


RE: Forgetting
By W00dmann on 2/17/12, Rating: -1
RE: Forgetting
By Theoz on 2/17/12, Rating: -1
Cost
By Gio6518 on 2/16/2012 7:50:10 PM , Rating: 3
Hmmmmmm, how much does a German judge go for nowadays...




RE: Cost
By messele on 2/17/2012 4:09:39 AM , Rating: 2
Is it the judge's fault if the defence's legal team (and their advisors within Motorola / Samsung) are morons?

You Can't defend breaching a patent by saying that some company other than your own did something similar years ago, it's down to the patent office to check those things at the time of issuing the patent and if it doesn't conflict with anything in their records (i.e. nobody bothered to patent it) then it can be grabbed by anybody.

Whether anybody likes that fact or not is irrelevant. That's the way law is written. Everybody has the same opportunities but some choose not to exploit them. Too bad.


Looks like we need to ban...
By Motoman on 2/17/2012 12:50:04 AM , Rating: 1
...Apple and Germany both.




RE: Looks like we need to ban...
By ShieTar on 2/17/2012 3:33:15 AM , Rating: 2
German courts should just ignore american companies trying to sue each other in germany. Our judges are obviously not prepared to handle the creativity of american lawyers.

On a positive note, this will have absolutely no impact on me personally, as I can just go an order my next phone from the UK or the US.

I think in the end, this sueing circus will only hurt the Phone-Shops that have to change their advertising whenever their favourite product gets banned.


By Cheesew1z69 on 2/19/2012 6:42:49 PM , Rating: 2
quote:
German courts should just ignore american companies trying to sue each other in germany
Yep...


to author
By hexxthalion on 2/17/2012 10:31:03 AM , Rating: 1
Did you even bother to look at the patent in question? I guess you didn't, because if you did you wouldn't write article like this.

--- rolleyes ---




RE: to author
By JasonMick (blog) on 2/17/2012 12:24:33 PM , Rating: 3
quote:
Did you even bother to look at the patent in question? I guess you didn't, because if you did you wouldn't write article like this.

--- rolleyes ---

Really?

I did scan the patent, and I believe I have a good feel for it.

Your comment is rather vague. What point exactly do you feel I erred on? Or are you just hoping to post vague aspersions because your claim is without merit?


Apple Trolls
By seraphim1982 on 2/17/2012 12:15:42 PM , Rating: 2
I PATENTING INTERNET TROLLLLLING even though people have be doing it far before me, just because I paid the judge off. Now all future internet trolls have to pay me royalties...




RE: Apple Trolls
By grbg on 2/19/2012 8:58:32 AM , Rating: 2
Well, I patent non troll posting - I still believe or hope, I'd get more money!


Jason Mick Please Do Some Research
By Theoz on 2/17/2012 12:33:34 PM , Rating: 2
Jason,

Infringement and validity are separate proceedings in Germany. The reason Motorola did not present evidence of invalidity nor was it considered is that there will be a later proceeding to determine the validity of the patent. Therefore, Apple can win on infringement and later lose on validity. Contrast the German system with the US system where infringement and validity are determined at the same proceeding. Please, for once, do a modicum of research before writing.




By cfaalm on 2/17/2012 3:53:42 PM , Rating: 2
OK, so Apple scored 1-0 but the game isn't over. Makes much more sense this way.


Once again...
By masamasa on 2/17/2012 11:12:24 AM , Rating: 2
F*** off Apple. I'm so sick of these patent trolls. Bottom feeders, that's all they are.

"But there's only one wee problem with Apple's patent and it's efforts to go "thermonuclear" on Android and "destroy it". Apple lifted the feature from a competitor. It did not invent swipe unlock. It was not even the first to sell a product with swipe unlock."




Open source
By The Raven on 2/17/2012 11:56:45 AM , Rating: 2
I am glad that (though there are tradeoffs) I don't have to worry about (much) of this crap in the FOSS world.

I'm certainly not gloating as I do have an android device, I'm just saying that it is one of the perks.




Zee zjermans
By cfaalm on 2/17/2012 3:41:42 PM , Rating: 2
What is it with these German judges anyway??? How can he be so misinformed and pass judgement? That's just ridiculous. Wouldn't he need some experts of his own before he brings down the hammer? Mein Gott!!




circle motion
By Murloc on 2/18/2012 12:54:50 PM , Rating: 2
do a rotate the wheel to unlock feature.




Patent Darts...
By Adam M on 2/19/2012 5:47:26 PM , Rating: 2
I would have liked to have been in on the board meeting that devised Apples legal strategy. Some one came up with the idea of spamming the legal system by throwing as many patents as they could at any judge foolish enough to listen. Many of their claims have been shot down and the ones that have succeeded have relatively easy work arounds. Apple has money to blow and it will all be on lawyers.




Neonode? Not quite
By Commodus on 2/16/12, Rating: -1
RE: Neonode? Not quite
By RicheemxX on 2/16/2012 11:54:53 PM , Rating: 2
You may correct me if I wrong but AFAIK Motorola did offer to license the standards-based patents you are talking about Apple didn't like the terms and used them anyways. I'm not clear on the how and why but it seems like everyone else but Apple didn't mind the terms set forth (unless its a case of Motorola not pushing the issue with them).

I understand the specific implementation notion I'm just saying it seems a lot like saying an apple swipe by any other direction just wouldn't be an apple swipe all the same. Its all still a swipe.


RE: Neonode? Not quite
By Tony Swash on 2/17/12, Rating: 0
RE: Neonode? Not quite
By JasonMick (blog) on 2/17/2012 11:26:34 AM , Rating: 2
quote:
So Motorola first abused it's FRAND commitment by being discriminatory and then asked a ludicrous license amount for the item. This will be struck down by the courts and bodies like the EU but it will tarnish Motorola's (and Google's) reputation.
What evidence do you have that the particular licensing fee was ludicrous?

Microsoft charges $10-$15 for its patents licensing for Android phones. That's roughly 5-10 percent of the sales revenue.

Also, how is it discriminatory if Motorola offered to license directly to Apple? Either way, if Apple pays, it gets licensed -- no discrimination.

Obviously Qualcomm wouldn't care if Apple (a big customer) didn't care. The one party unhappy here is Apple.

Basically Apple wants to try to milk the supply chain by buying its way into certain discounted licenses (by exploiting licensing relationships between firms), while refusing to license its overly broad design and technology. That's plain anticompetitive and abusive.

"Fair" is a very ambiguous term. Clearly Qualcomm was a strategic CPU supplier of Motorola, so it might offer the licensing to Qualcomm at a lower rate. If HTC got discounted FRAND CPUs, is that horrible for Motorola? No, it supports the cause.

"Non-discriminatory" does not mean that a company can not license its FRAND IP at a discounted rate (less than the industry standard) or for free to key allies. It also does not mean that it HAS to license to everyone for the same rate. It merely means it cannot seek licensing ABOVE the industry standard, or deny licensing.

Bor Apple -- the top smartphone maker in the world -- it likely does not want to apply the same discount, but rather wants to develop a direct (but fair) licensing relationship, so it can fully profit off its ingenuity.


RE: Neonode? Not quite
By Tony Swash on 2/17/2012 2:15:47 PM , Rating: 2
FRAND stands for "fair, reasonable, and non-discriminatory terms".

There is clear evidence that Qualcomm thought it had secured a FRAND license framework for the chip in question which meant that it's customer did not have to pay any further license fees directly to Motorola. That was how the sale of the item in question had been conducted for some time.

Motorola specifically and explicitly withdrew that agreement just in relation to Apple. Which is discriminatory. And thus breaches FRAND.

Motorola specifically and explicitly then asked for a very high license just from Apple. There is no evidence that anyone else pays anything like 2.5% of the value of the finished goods that contain this chip (which is what Motorola is demanding of Apple) as license fees to Motorola. Which is unfair, unreasonable, and discriminatory. And thus breaches FRAND.

Apple will win this one and Motorola will have to probably pay damages to Apple (and possibly Qualcomm).

I am very surprised that Motorola (and Google) decided to use such a stupid and ultimately weak legal tactic as this.

I am not surprised that so many people around here try to defend their actions as being anti-Apple seems to trump all other considerations for some.


RE: Neonode? Not quite
By Cheesew1z69 on 2/17/2012 2:27:18 PM , Rating: 2
quote:
There is no evidence that anyone else pays anything like 2.5% of the value of the finished goods
Because, it's NOT DISCLOSED....You have NO idea what others pay. NONE.


RE: Neonode? Not quite
By retrospooty on 2/17/2012 3:10:40 PM , Rating: 2
/Tony Swash... But, Apple is right, because they are Apple and Apple says so. If Apple says so it must be true. I know this because Apple told me. Apple is right in all things they do no matter what. Just check Apple.com for more valuable info.


RE: Neonode? Not quite
By testerguy on 2/17/2012 4:19:40 PM , Rating: 2
quote:
What evidence do you have that the particular licensing fee was ludicrous?


What evidence do you have that it isn't?

quote:
icrosoft charges $10-$15 for its patents licensing for Android phones. That's roughly 5-10 percent of the sales revenue.


Few cock-ups here. First - Microsoft charges a fixed cost, not a percentage. Secondly, patent s (plural), not just one patent. And most crucially, THEY ARE NOT FRAND PATENTS, SO DO NOT HAVE TO BE FAIR OR REASONABLE.

Seriously dumb (as ever).

quote:
Also, how is it discriminatory if Motorola offered to license directly to Apple?


Because they tried to remove the cascading license, which was a part of what Apple was purchasing when dealing with Qualcomm, but didn't do the same to all the other manufacturers? How can you possibly not get that...

quote:
Either way, if Apple pays, it gets licensed -- no discrimination.


1 - The other companies have an implied license through Qualcomm. Not paying, licensed = discrimination.
2 - Apple has offered to pay FRAND rates, going back and forward.
3 - Motorola has demanded ABOVE-FRAND rates, going back, and is trying to refuse FRAND licensing going forward at FRAND rates based on this ridiculous claim.

quote:
Basically Apple wants to try to milk the supply chain by buying its way into certain discounted licenses (by exploiting licensing relationships between firms), while refusing to license its overly broad design and technology. That's plain anticompetitive and abusive.


Absolute nonsense. Every other manufacturer did exactly the same thing. Only Apple was skanked into having to re-license this.

quote:
"Fair" is a very ambiguous term. Clearly Qualcomm was a strategic CPU supplier of Motorola, so it might offer the licensing to Qualcomm at a lower rate. If HTC got discounted FRAND CPUs, is that horrible for Motorola? No, it supports the cause.


Fair and NON DISCRIMINATORY are not ambiguous at all. It means you can't show any favouritism, simple as. That's the whole point of FRAND. If you could show favouritism how could you ever say that was non-discriminatory? (or fair, by the way).

quote:
"Non-discriminatory" does not mean that a company can not license its FRAND IP at a discounted rate (less than the industry standard) or for free to key allies. It also does not mean that it HAS to license to everyone for the same rate. It merely means it cannot seek licensing ABOVE the industry standard, or deny licensing.


Riiiiight Jason. So what's actually happening is that Motorola is costing themselves money they could easily and happily gain by charging LOWER THAN FRAND RATES for their FRAND technology to their competitors. Because they are a big charity like that and they are very very nice boys. And they are not trying to completely rip Apple offer by openly admitting that they are asking for ABOVE FRAND rates, they are actually being fair and nice albeit having forgotten the fact that they are a charity. Honestly you get more and more absurd. And actually, licensing FRAND patents at below FRAND rates to specific allies could VERY WELL be seen as a breach of the FRAND terms and anti-competitive.

quote:
Bor Apple -- the top smartphone maker in the world -- it likely does not want to apply the same discount, but rather wants to develop a direct (but fair) licensing relationship, so it can fully profit off its ingenuity.


If this were true:

a) They wouldn't have OPENLY admitted to wanting ABOVE FRAND RATES.
b) They wouldn't have sought a ban on products, an anti-competitive act which isn't required to achieve the financial outcome.
c) They wouldn't be refusing to license at FRAND rates going forward, and would have accepted Apples offer of FULL FRAND rates going backwards and forwards.

Of course, all of the above didn't happen and you're talking uninformed drivel again.


RE: Neonode? Not quite
By Cheesew1z69 on 2/17/2012 4:36:01 PM , Rating: 2
quote:
Seriously dumb (as ever).

Yep, you sure are.

quote:
talking uninformed drivel again

Just as much as you are uninformed, because, guess what? You have no clue what goes on between the companies. Just as much as he doesn't.


RE: Neonode? Not quite
By nafhan on 2/17/2012 3:18:46 PM , Rating: 2
IF this was happening in a vacuum it would clearly just be Motorola abusing the system. It's not that simple, though. You've got one company abusing the patent system to protect themselves from another company abusing the patent system in a different way because they have a god/Jobs given Jihad to carry out.

It's a mess, and the best case scenario (for the consumer) is that patent law gets fixed up in favor of innovation rather than patent spamming. Worst case scenario: we end up with whoever has the most money suing all the other players out of the marketplace completely tanking innovation.


RE: Neonode? Not quite
By Cheesew1z69 on 2/17/2012 3:23:29 PM , Rating: 2
quote:
It's not that simple, though
Of course it's not, but that's not how the Apple apologists see it, they think everyone ELSE is in the wrong and that Apple is the victim here.


"There is a single light of science, and to brighten it anywhere is to brighten it everywhere." -- Isaac Asimov














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