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).  

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.


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. 


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.


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.


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.


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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RE: FRAND vs. Moronic
By testerguy on 2/17/2012 4:03:53 PM , Rating: 0
Apple contends that they were NOT offered FRAND terms back in 2007.

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.

Unlike what the uninformed Jason Dick says, Apple has also offered FRAND rates both going backward and forward, but Motorola is asking for ABOVE frand rates, for the historical licensing. Furthermore, Motorola has sought to ban products by refusing to offer the FRAND license (despite Apples offer of FRAND rates) because Apple has not agreed to pay their ridiculous above-FRAND rates for the historical licensing.

So the only 'douchebag' here, is Motorola, and they will shortly get in trouble, in my opinion, for trying to seek an injunction (to ban devices) over a FRAND patent, when FRAND by its very nature means that you should never do this. They should, instead, simply sue for the money they are owed - which has arguably already been offered to them.

RE: FRAND vs. Moronic
By Cheesew1z69 on 2/17/2012 4:07:15 PM , Rating: 1
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
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
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:

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
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.

"It's okay. The scenarios aren't that clear. But it's good looking. [Steve Jobs] does good design, and [the iPad] is absolutely a good example of that." -- Bill Gates on the Apple iPad

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