German Lawsuit Loss Forces Apple to Cut Verboten iPad, iPhone Feature
February 24, 2012 11:08 AM
Push-email is likely gone from the iCloud for at least a year
It is a small thing. But as Apple, Inc. (
) well knows, it is the little things that sell a product.
I. Bye Bye Bye
proudly unveiled the iCloud
in mid-2011. The service offers photo streaming, documents "in the cloud", automated backups, and push email/calendar/contacts. Well, for Germany, Europe's third largest tablet and smartphone market, the good times are over, as the push email functionality is officially banned.
After new Google Inc. (
secured a preliminary injunction
just weeks ago in German court, Apple failed to convince a judge to inflate the bond. As a result, Motorola paid the bond to carry through with the ban. Some sources are estimating that bond could have cost around €100M ($134.1M USD).
The iCloud's core push-email is verboten in Germany. [Image Source: 9 to 5 Mac]
Left with little recourse, Apple was left doing the same thing it had forced Android phonemakers to do -- remove features. To recap, Apple has already forced several Android phonemakers to remove the "bounce" animation from their smartphones, and degrade the quality of scrolling in their gallery. Those concessions come after preliminary injunction losses
in regions such as the Netherlands
. And in Germany Apple has even
banned Motorola and Samsung
Electronics Comp., Ltd. (
) from using
, forcing them to use a clunky spiral motion unlock screen.
to its German fans the bad news:
Due to recent patent litigation by Motorola Mobility, iCloud and MobileMe users are currently unable to have iCloud and MobileMe email pushed to their iOS devices while located within the borders of Germany.
Affected customers will still receive iCloud and MobileMe email, but new messages will be downloaded to their devices when the Mail app is opened, or when their device periodically fetches new messages as configured in iOS Settings. Push email service on desktop computers, laptop computers, and the web is unaffected, as is service from other providers such as Microsoft Exchange ActiveSync.
Apple believes Motorola's patent is invalid and is appealing the decision.
Apple's calendar and contacts syncing will continue to function as normal in iCloud and MobileMe, despite the loss of push email.
II. Why Was the iCloud Feature Banned, and What Is Next?
The device maker faces an uphill struggle from here on out. Like many of Apple's patents that it's litigated with, Motorola's push email patent may be invalid due to prior art or other issues (novelty, etc.).
In the U.S., a lower federal courts judges can ban a product or service via preliminary injunction if they feel that:
a) The described product or service clearly violates the patent
b) There is
a "high likelihood" that a patent is invalid.
The German court system works slightly differently, but the end result is the same. In Germany infringement proceeds along one track, while validity proceeds along a second, parallel track [source]. A judge can pause (stay) the infringement proceedings to wait for the conclusion of the validity, but only if there
a "high likelihood" of their validity.
Again, both systems rely on the premise of a "high likelihood" of invalidity, which is typically defined at somewhere around 70 to 80 percent. Of course this is wholly subjective, meaning how one judge might rule could vary substantially from what another judge might rule.
For now Apple's iPads and iPhones have been crippled of a key feature, much as Apple has crippled its competitors. Apple's next soonest hope of killing the painful ruling comes when it pleads its case before the
Düsseldorf Higher Regional Court
, a German appeals court. The appeals court has a lower standard of invalidity to grant a stay -- it can grant a stay if it feels that there's over a 50 percent chance of invalidity.
iPhone owners must live with the ban, likely for at least a year. [Image Source: Tech Axcess]
However, the issue for Apple is that the appeals court likely won't hear the case for at least a year -- ironically, a delay which may in part be lengthened due to all the appeals Apple has generated in its its own injunction
over Android phonemakers. And, of course, there's no guarantees that the appeals court will even see the patent as 50 percent or more likely to be invalid.
The Android v. Apple patent dispute is increasingly looking like a stalemate of growing attrition. Everyone is losing -- especially the customers -- as features disappear from both sides' products. And there's little sign that the leadership on either side is willing to offer an end to the conflict.
The higher invalidity standard is in major contrast with other EU nations, such as the Netherlands and the United Kingdom.
The push-email patent used in this case is
a patent promised under the "fair, reasonable, and non-discriminatory" (FRAND) rules. Thus, unlike
some other recent rulings
-- such as a German ban on online iPad/iPhone sales -- Motorola stands no risk of
getting in trouble for FRAND abuse
for its effort (as, again, the patent is not FRAND).
The patent involved in this ruling is
EP (European Patent) 0847654 (B1)
. The U.S. counterpart:
U.S. Patent No. 5,754,119
, which covers a "multiple pager status synchronization system and method".
"There's no chance that the iPhone is going to get any significant market share. No chance." -- Microsoft CEO Steve Ballmer
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