Apple Inserts Foot in Mouth, is Blasted for Complaining About U.S. Victory
April 4, 2012 3:30 PM
comment(s) - last by
(Source: badjonni via flickr)
Apparently #winning is not enough -- complaints could come back to bite Apple, provide ammo for Android rivals
Apple, Inc. (
) supporters hailed Chicago, Illinois
Seventh Circuit Court of Appeals
Judge Richard Posner
's ruling as a landmark in the gadgetmaker's case against new Google Inc. (
(pending Chinese approval) and top Android phonemaker, Motorola Mobility.
Not only did uphold most of Apple's claim construction regarding Apple's asserted intellectual property rights,
U.S. Patent No. 7,479,949
infamous "multi-touch patent"
-- it also admonished Motorola's counterarguments. Supporters said that the strong victory could clear the way for something even they weren't sure if they were comfortable with --
a complete ban
current top smartphone platform, Android
So how did Apple respond to this wonderful legal gift that Judge Posner handed it?
Apparently "complained" would be the proper term. Astoundingly Apple filed a motion challenging some aspects of the Judge's Claim Construction, which it felt might weaken its
to destroy all of the top Android phonemakers' sales.
But much like Napoleon's bold invasion of Moscow, followed by a ruinous retreat, Apple may have made a fatal miscalculation in angering Judge Posner who once appeared to be on its side. Judge Posner called Apple's filing "troubling" and
Apple presumably spent a nontrivial amount of time drafting its order, and now I have done the same in responding to it. Yet it seems that Apple brought about this expenditure of scarce resources without first making a careful reading of the page or so of my order against which this motion is launched. Such inconsiderate sloppiness is unprofessional and unacceptable.
Judge Posner's tone with Apple shifted dramatically. [Image Source: Appellate Lawyers Assoc.]
Given Judge Posner's strong reputation in U.S. Federal legal circles, his criticism of Apple's legal staff as "unprofessional" is very "troubling" for the Cupertino gadgetmaker, to borrow his term. That criticism goes well beyond his harshest words to Motorola's lawyers to date.
Again, it's somewhat baffling why Apple would turn around and burn itself on the eve of its greatest triumph in U.S. Federal Court. However, some grateful Motorola lawyers are surely thanking the heavens for this inexplicable turn of events.
An important note is that Motorola started the lawsuits with an Oct. 2010 filing against Apple claiming infringement of 18 patents. However, given that Apple had
just filed a lawsuit against HTC
had admittedly threatened
both Samsung Electronics Comp., Ltd. (
) and Motorola with litigation, it appears this may have been a "preemptive strike". Sure enough, Apple sued Motorola later that month. So far Apple has done better in the U.S., though Motorola did get several key patents invalidated.
A non-biased observer could argue that Apple started the lawsuit war with Android, but Samsung and Motorola escalated it with new suits, and a host of international filings. Likewise, such an observer might point out that a piece of the culpability lies with Windows Phone maker Nokia Oyj. (
kicked off the lawsuit wars in 2009
, suing Apple over 10 patents and filing a complaint with the U.S. International Trade Commission seeking to ban iPhone imports from their manufacturing location in China. That ban request was the first of its kind and would be echoed in later ITC filings by Apple and its Android rivals.
of the lawsuit wars.
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RE: From Judge Posner's response
4/5/2012 10:01:20 AM
The problem is one that I have pointed out time and again.
There is a reason that the Canadian patent office told Apple to "go fly a kite".
"Multi-touch" and it's surrounding heuristics were invented at the University of Toronto in the 1980's. It was further expanded upon by researchers. Everything you see in the way that you interact with smart phones and tablets, you can find in these white papers. Apple didn't invent squat, they just patented/implemented someone else's invention and then claimed they changed the world.
Unfortunately, with the patent office changing from "first to invent" to "first to file", this prior art is simply irrelevant in the US. The judge in this case had reviewed these documents, but discarded them from evidence because the researchers never filed a patent. What is ironic is that the researchers never filed patents at the time because to them it was obvious technology at the time, literally dozens of major schools of computing were contributing to these papers every year.
RE: From Judge Posner's response
4/5/2012 11:26:22 AM
Your post has so many inaccuracies:
1) First to file only affects patents filed on or after March 16, 2013, therefore this patent application is still on the first to invent system
2) First to file has MORE prior art than first to invent, not less. The reason for this is that in a first to invent system you can remove prior art that published prior to your filing date by proving a date of invention before the prior art date.
3) There are many things that can be prior art beyond just patent applications. For instance, a) offers for sales; b) prior use; c) printed publications anywhere in the world; etc. if the Canadian art you cite was published than it would be prior art in the US if it published more than 1 year before Apple's filing regardless of whether it was in a patent application or not.
RE: From Judge Posner's response
4/5/2012 11:45:43 AM
you don't even try to dispute that apple in fact did not invent the multi-touch interface.
"We can't expect users to use common sense. That would eliminate the need for all sorts of legislation, committees, oversight and lawyers." -- Christopher Jennings
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