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 Post subject: Apple vs Android: Patent Wars
PostPosted: Sat Dec 10, 2011 10:00 am 
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Motorola parks tanks on Apple's German lawn

We're not FRANDs any more, argue MotoMobe


By Bill Ray • Register Hardware



Motorola Mobility has gained an injunction against Apple sales in Germany, through careful application of owed royalties on previous infringements, but enforcing it will cost Motorola €100m in bond money.

That money has to be lodged with the court in case a later ruling overrides this decision. It's a lot less than the €2bn Apple asked the court to demand, and Motorola might decide not to ask for the injunction to be enforced until Apple's inevitable appeal has been dealt with, but it's still a victory for the company that aspires to being Google's mobile wing.

This is the same case during which Apple earned a default ruling by failing to turn up in court, but while Cupertino dismissed that as "a procedural issue" this time it's a proper ruling which could be used to prevent Apple products being sold in Germany.

The ruling, hosted and translated by patent watcher Florian Mueller, covers a patent which is almost certainly essential to the GPRS standard, and as such is subject to FRAND (Fair, Reasonable and Non-Discriminatory) licensing. But under German law the potential licensee of a FRAND patent cannot attach conditions to their licence, something Apple appears to want to do.

The conditions relate to possible previous infractions. Apple has been making GPRS-compatible phones for a while now and wants any historical infraction to be at FRAND rates while reserving the right to do without a licence if it can prove the patent invalid or inapplicable during the ongoing court case.

Those conditions have enabled Motorola to reject Apple's licence offer, and thus sue to get the injunction, in Germany at least.

There will, no doubt, be an appeal, so this is one more round rather than any decisive victory or conclusion, but it's a round we can award to Motorola Mobility.

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 Post subject: Re: Motorola parks tanks on Apple's German lawn
PostPosted: Sat Dec 10, 2011 10:08 am 
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That'll teach 'em. :snigger:

And many manufacturers and even individual developers that Apple have pursued legally for using Android will be thinking it's long overdue legal/patent protection from it's parent Google who took their time to enter this battle - ooh but when they did they did! Starting with a $12.5Bn acquisition of Motorola's mobile business complete with large amount of patents that Apple have used for years, a way to invalidate the previous licence agreement for them and an immediate ban on Apple products in Germany. Blam! Smoothly done I say, they're certainly not messing around. Samsung in particular must be laughing themselves to sleep at nights. :snigger:

It's far from over, there'll be claim and counter claim etc. and it could rumble on for years, but it'll be interesting to see how Apple respond to it, having previously been reluctant to take on someone as big as Google. Apple always like to think they can steamroller and bully anyone... so long as it's a little guy much smaller than they are.

Round one emphatically goes to Google though. 1-0.

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 Post subject: Re: Motorola parks tanks on Apple's German lawn
PostPosted: Sat Dec 10, 2011 10:58 am 
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Motorola Mobility wins German patent suit against Apple, overcomes FRAND defense



At 9 AM today, the Mannheim Regional Court pronounced its ruling on one of the patent infringement lawsuits Motorola Mobility brought against Apple in Germany in April 2011. This is the first substantive ruling in this dispute. A default judgment that the same court entered against Apple last month will be rediscussed at a second hearing in early February. Here's today's ruling, which includes an injunction that is preliminarily enforceable against Ireland-based Apple Sales International in exchange for a €100 million ($134 million) bond unless Apple wins a stay.


The ruling generally relates to all Apple products that implement the patent-in-suit. The ruling notes that, "inter alia", this includes the iPhone, iPhone 3G, iPhone 3GS, iPhone 4, iPad 3G and iPad2 3G. But the iPhone 4S, which was released after this litigation started (April 2011), undoubtedly implements the same telecommunications standard.

The patent-in-suit is EP (European Patent) 1010336 (B1) on a "method for performing a countdown function during a mobile-originated transfer for a packet radio system". This patent is one of the two patents at issue in the action in which a default judgment was entered against Apple Inc. It was declared essential to the General Packet Radio Service (GPRS) standard. It's the European equivalent of U.S. Patent No. 6,359,898, a patent against which Apple raised a FRAND defense in the United States and which is being asserted in an action that was just transferred from the Western District of Wisconsin to the Northern District of Illinois.

The ruling targets Apple's European sales organization but relates only to that entity's sale to German customers.

Besides an injunction, the ruling also holds that Apple owes damages of an amount to be determined after Apple provides to Motorola certain information on the sale of infringing products in Germany in the past. All of this can be appealed.

What will Apple do?

The ruling states that Apple could modify its products by removing the patented feature so as to steer clear of further infringement. It remains to be seen whether this is a commercially viable option for Apple. This feature could be somewhat fundamental to wireless data transfers in general.

Apple is certainly going to appeal this ruling to the Karlsruhe Higher Regional Court and to request a stay for the duration of the appellate proceedings. Such a suspension may or may not be granted. If there's no stay, Motorola will have to decide whether to bear the risk of enforcing a ruling that might be overturned later. Apple asked for a €2 billion ($2.7 billion) bond, but the court agreed with Motorola that a much lower amount -- in this case, €100 million -- was warranted.

Apple might also make efforts to procure a license to the patent-in-suit. Apple made an offer to Motorola to take a license on FRAND terms going forward, but, as I'll explain further below, Motorola's lawyers developed a theory that enabled them to reject Apple's offer while fully preserving their client's entitlement to injunctive relief according to the decision taken by the Mannheim court. Since the ruling adjudicated a new question of law, it's of particular significance.

Quinn Emanuel and Mannheim continue to give Apple a run for the money

There's no question that this is a major win for Motorola Mobility and its counsel, Quinn Emanuel (the firm also defeated Apple's motion for a preliminary injunction against Samsung in the US, a decision that Apple just appealed).

They are also on the winning track against Apple in another Mannheim case. That other case involves the second of the two patents at issue in the action known for the default judgment. It's increasingly unlikely that the default judgment may soon be replaced by a substantive ruling with an identical outcome (but a stronger basis for enforcement).

Yesterday I found out (from a French court decision) that Apple is also suing in Mannheim. They are asserting six patents against Samsung in that venue, which is probably the second center of gravity of worldwide wireless patent litigation now (second only to the ITC).

Mannheim court allows patent holders to tie a FRAND license for the future to an unconditional recognition of liability for past damages

In connection with another Motorola v. Apple litigation in Mannheim I explained last week how companies seeking a FRAND license in Germany must follow a certain procedure laid out by the German Federal Court of Justice in its Orange-Book-Standard ruling. Essentially, they can't just hold a FRAND defense against a patent holder who's suing them. Instead, they have to proactively make efforts to procure a license on FRAND terms by making an irrevocable, binding offer to the patent holder and by posting a bond for ongoing royalties.

Only if the FRAND patent holder denies a license despite having such an offer on the table, the defendant can claim that an injunction would result in a violation of competition law and, as a result, should not be granted. I have so far seen only one German patent ruling in which that kind of defense appeared to have contributed to a decision by the Mannheim Regional Court to stay a case rather than order an injunction.

The ruling explains in detail what kind of offer Apple made to Motorola. That offer is one relating to all of Motorola's FRAND-pledged patents including the one at issue in the case that was heard a week ago.

Motorola overcame Apple's FRAND defense because Apple reserved the right to contest the validity of the patent-in-suit "when, insofar and for as long as" Motorola would seek damages for past infringement -- which in Motorola's opinion goes back to the year 2007 -- above a FRAND rate.

The logic presented by Motorola's counsel convinced the court: someone using a patented invention should have to pay a price for being found to have infringed. While competition law requires the patent holder to extend a license on FRAND terms going forward, past infringement is a different matter. If, in the alternative, damages for past infringement were limited to a FRAND royalty rate, Motorola and Judge Voß argue, an infringer might ultimately get to use the patent on more favorable terms than someone procuring a license at the outset. They say that favorable terms would result from a scenario in which payments for using the patent in the past can be avoided by proving the patent invalid.

In this case, Apple has a nullity action (a litigation to invalidate the patent) going at the Federal Patent Court in Munich. Whether or not it will succeed is unclear at this stage, but if it succeeded, Apple wouldn't want to pay royalties for past infringement. Under the offer Apple made to Motorola, it would accept a continuing obligation to pay FRAND royalties in the future, but it wants to retain its invalidity defense with a view to damage claims related to past infringement (unless those damages claims were limited to a hypothetical license on FRAND terms).

Commercially, this would pose substantial risk to Apple. Damages for past infringement could be high if they are not limited to a FRAND rate.

But the Orange-Book-Standard decision didn't address the issue of past damages explicitly. I have talked to several lawyers who are uncomfortable with its lack of specificity. Motorola's German counsel found multiple ways to justify a rejection of Apple's FRAND offer and avoid having to grant a compulsory license, at least at this stage (this will likely be the most important issue on appeal). The one I just described at length is the one that won the day. Therefore, the court didn't see a need to look into some of the other FRAND questions raised, which include the following ones:

* Motorola apparently argued that it would not have to grant a license for future use only if someone recognizes liability for past infringement in principle. They apparently want to receive a payment for those past damages or at least a bond that guarantees such payment.

* It's unclear whether such licensing offers as the one made by Apple can be limited to a particular patent, or to standards-essential patents valid in only one jurisdiction (in this case, Germany), or whether a patent holder can withhold a license for the German market unless an offer to take a license covers all standards-essential patents held by the patent holder around the world.

* The court also didn't address the question of whether willful infringement might preclude a defendant from access to a FRAND defense. Motorola claims to have contacted Apple back in 2007 with a demand to take a license to its standards-essential patents.

Any one of the questions raised above might also entitle a FRAND patent holder in Germany to withhold a license and preserve his ability to request and obtain injunctive relief.

There's no doubt that Germany is a particularly difficult place for bringing a FRAND defense. With today's ruling, that's clearer than ever, and creative lawyers will probably push the Orange-Book-Standard envelope in ever more ways over time.

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 Post subject: Re: Motorola parks tanks on Apple's German lawn
PostPosted: Sun Dec 11, 2011 1:46 pm 
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 Post subject: Re: Motorola parks tanks on Apple's German lawn
PostPosted: Mon Jan 16, 2012 4:35 am 
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ITC gives Motorola the early win in patent fight with Apple

By Jacqui Cheng | Arstechnica


Apple has suffered an early loss in its patent suit against Motorola. An administrative law judge (ALJ) with the International Trade Commission (ITC) issued an initial ruling late on Friday, saying that Motorola did not violate three of Apple's smartphone patents. The decision signals potential trouble for Apple, though it still faces the approval of a six-person ITC panel.

Apple and Motorola have been embroiled in a series of lawsuits both in federal court and with the ITC since 2010, when Motorola first accused Apple of violating a wide range of its patents covering 3G, GPRS, and 802.11 technologies, antenna design, proximity sensing, and device synchronization, to name a few. As is typical for these patent disputes, Apple immediately responded with its own countersuits, claiming that Motorola's Android-based smartphones were infringing on Apple's own intellectual property.

Friday's ruling isn't yet the final word from the ITC, and the panel doesn't always rule the same way as the ALJ. Still, the decision is an indicator that Apple's IP fight against Android may not be as easy as former Apple CEO Steve Jobs might have hoped when he said he hoped to "go thermonuclear war" against the platform. Though Apple has not commented publicly on the initial ITC ruling, Motorola was quick to send out a victorious statement for its early win.

"We are pleased with [Friday's] favorable outcome for Motorola Mobility," Motorola Mobility general counsel Scott Offer said in a statement. "Motorola Mobility has worked hard over the years to develop technology and build an industry-leading intellectual property portfolio. We are proud to leverage this broad and deep portfolio to create differentiated innovations that enhance the user experience."

This is the second recent setback Apple has faced when it comes to its mobile patents and Motorola—the first one came in December when a German court issued an injunction against Apple over one of Motorola's cellular data transmission patents. Apple did, however, recently win an ITC ruling against another Android smartphone maker, HTC, with the manufacturer facing a potential import ban on its Android-based devices starting in April of this year. Still, HTC claims it has already figured out how to remove the offending features in its devices, so it's unlikely that HTC's smartphones will actually be banned from import into the US anytime soon.

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 Post subject: Re: ITC gives Motorola the early win in patent fight with Apple
PostPosted: Mon Jan 16, 2012 5:18 am 
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I wonder if Jobs is turning in his grave yet? :snigger:

While it's not quite in the bag yet, IF Apple lose this then their current master plan to use the courts to stifle competition in the smart phone market could be well and truly undone, and I suspect that over the next year or two their financial smartphone profits lead will evaporate like their largest smartphone maker crown that went to Samsung. And it would be a huge boost for Android makers if Apple's snarly legal hounds were called off for good.

Just the mighty Oracle to get past now, the world's third largest software company by revenue behind Microsoft and IBM, and now a hardware company too, who claim infringement on their recently acquired Java copyrights over Google/Android reusing a few Java files, and the judge in this case has recently sent Oracle away to come up with more sensible estimates of damages and it due to go to trial in March this year.

Google really messed up not sorting all this out before launching their free mobile operating system, but with the acquisition of Motorola Mobility for $12.5Bn they have a lot of patents to fight back with.

Fingers crossed for then Google I think, 'cause despite them not quite living up to their (in)famous 'don't be evil' mantra, Android is a good alternative to Apple/Microsoft and therefore good for consumers in general imho.

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 Post subject: Re: ITC gives Motorola the early win in patent fight with Apple
PostPosted: Fri Feb 17, 2012 3:08 pm 
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Apple lands slide-to-unlock patent blow on Motorola

Android mobe maker needs Ice Cream Sandwich ASAP


By Bill Ray • Register



Motorola's Android handsets are infringing Apple's slide-to-unlock patent, in Germany at least, though an appeal may be lodged.

Apple hasn't said it will enforce the Munich ruling - a permanent injunction - as it would need to post a bond against failure at appeal, but the judge is clear that Motorola needs to find a different way to unlock handsets as patent-court-lurker Florian Mueller reports.

The ruling does not cover Motorola's Xoom tablet, as that uses a drag-finger-outside-circle unlocking which is sufficiently different from Apple's approach, but Motorola's Android handsets do implement an iPhone-like swipe mechanism, and one which Motorola may be forced to change.

Ice Cream Sandwich, the next version of Android, can be unlocked just by looking at the camera, but earlier this week Motorola admitted that ICS updates are still at least three months off, and US updates to the flagship RAZR don't even have a schedule yet (though Europe should see it later this year).

So any enforcement by Apple would require Motorola to push out updates changing the experience of unlocking the phone, something users have become very familiar with, but Apple may decide to bide its time and wait for an appeal, perhaps with the hope of catching the Xoom in the net next time around.

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 Post subject: Re: Apple lands slide-to-unlock patent blow on Motorola
PostPosted: Fri Feb 17, 2012 3:19 pm 
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And for all those of you transfixed/nauseous of the whole patent ping-pong game, Google have just today had their own patent approved for their own touchscreen/voice recognition unlock system which gives them even more to argue about... :doh:



Google swings new mobile unlock patent punch at Apple

Two-icon widget comes in nick of time for Android overlord


By Anna Leach • Get more from this author



In a well-timed stroke of luck for Google, a patent for unlocking mobile devices that it filed in August 2010 was granted to the Chocolate Factory earlier this month. The patent details a method for unlocking a computer with user inputs including touch and will provide Google's phone partners with some welcome relief after Apple's recent win on their slide-to-unlock patent in Germany.

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Google's new unlock patent, credit US Patent Office

A German court ruled yesterday that Motorola's Android phones were infringing on Apple's patent on using a slide motion to unlock the screen on a mobile device. Motorola will appeal and claim it will not affect sales of current devices, but it raises the danger that other Android phones in Germany would be vulnerable to the same ban.

Google's new patent covers using touch to take a computer device from a locked to an unlocked state. It could give the next generation of Android phones a legally-safe unlock option and offer much needed relief for Motorola, Samsung and HTC from the headache of Apple's persistent lawsuits over the feature.

Google filed the patent back in August 6, 2010, 11 days before Apple were awarded the slide-to-unlock patent on 17 August 2010 which has caused so many lawsuits in the past 18 months.

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Google's new unlock patent, credit US Patent Office

The uniqueness of Google's new unlock idea comes from bundling the unlock command with a second command to launch an application. To open the device, the user might drag an icon (say email) over the unlock button and simultaneously unlock the phone while firing up their email account.

The patent also comprises a voice-recognition-to-unlock method.

It will be welcome news to the phone-makers keen to start building the next generation of Android phones.

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 Post subject: Re: Apple lands slide-to-unlock patent blow on Motorola
PostPosted: Sat Feb 25, 2012 6:16 am 
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Apple fanbois forced to go on the pull by Motorola patent

Germans won't get the message after iOS court defeat


By Bill Ray • Register



Apple has switched off push notifications in Germany, responding to Motorola Mobility's successful patent lawsuit, so iCloud users in Germany will have to learn to pull together.

The outage also affects MobileMe, but anyone using ActiveSync or other push mechanisms will be fine as the companies behind those aren't being sued by Motorola Mobility. iCloud and MobileMe users will have to switch to periodic polling while Apple appeals the decision, and the mobile industry's patent war spills into the pockets of ordinary users.

Apple Germany has posted a guide for locals and visitors, explaining how to set up both iCloud and MobileMe to pull data instead of waiting for it to get pushed, and reminding visitors that they'll have to reactivate pushed services when they get home.

This isn't, apparently, the first time a patent spat has meddled with what's already in our palms - it's just a particularly obvious one. Patent court lurker Florian Mueller cites a handful of changes to the Android experience he attributes to patent cases - from the disappearance of a bouncing scroll bar to clumsy photograph browsing and the much-discussed slide-to-unlock widget vanishing from Motorola handsets (though outside Germany Motorola handsets can still be unlocked that way).

These interface patents are unrelated to those essential to the telephony standards, which come with FRAND (Fair, Reasonable and Non-Discriminatory) obligations. Apple has complained to the EC about Motorola Mobility's behaviour regarding those patents, claiming that it was never given a fair shot at a licence, but interface elements aren't essential to telephony so fall outside that complaint.

Motorola Mobility reckons it owns the idea of pushed notifications just as much as Apple owns slide-to-unlock, and if it indeed does then Apple has no right to push stuff around without a licence.

In his blog on the subject Mueller reminds us that German courts refuse to discuss the validity of patents during infringement hearings. The court has to decide if the patent is being infringed, not if it is a valid patent, and in this case Apple has been found to be infringing.

Apple still has the right to appeal, and will, but Motorola Mobility has the right to demand enforcement while the appeal is progressing, which is why Germans relying on Apple to keep them updated will need to learn to do some smart pulling.

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 Post subject: Re: Apple fanbois forced to go on the pull by Motorola patent
PostPosted: Sat Feb 25, 2012 6:42 am 
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Another blow for Apple, pending their appeal of course.

The patents system has truly failed and in the end we'll all be left with incompatible devices that cost more and do less. Yay for the patent system.

But I've no sympathy for Apple who sued everybody. It's always nice to see bullies get bashed back. :evil:

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 Post subject: Re: Apple fanbois forced to go on the pull by Motorola patent
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If Android is a "stolen product," then so was the iPhone

By Timothy B. Lee - Arstechnica.com



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Urban street artist Banksy and Apple CEO Steve Jobs, kindred souls?

According to his official biographer, Steve Jobs went ballistic in January 2010 when he saw HTC's newest Android phones. "I want you to stop using our ideas in Android," Jobs reportedly told Eric Schmidt, then Google's CEO. Schmidt had already been forced to resign from Apple's board, partly due to increased smartphone competition between the two companies. Jobs then vowed to "spend every penny of Apple's $40 billion in the bank to right this wrong."

Jobs called Android a "stolen product," but theft can be a tricky concept when talking about innovation. The iPhone didn't emerge fully formed from Jobs's head. Rather, it represented the culmination of incremental innovation over decades—much of which occurred outside of Cupertino.

Innovation within multitouch and smartphone technology goes back decades—the first multitouch devices were created in the 1980s—and spans a large number of researchers and commercial firms. It wouldn't have been possible to create the iPhone without copying the ideas of these other researchers. And since the release of Android, Apple has incorporated some Google ideas into iOS.

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The "Digital Desk" in action, showing a pinch-to-resize gesture in 1991. Pierre Wellner

You can call this process plenty of names, some less than complimentary, but consumers generally benefit from the copying within the smartphone market. The best ideas are quickly incorporated into all the leading mobile platforms.

The current legal battles over smartphones are a sequel to the "look and feel" battle over the graphical user interface (GUI) in the late 1980s. Apple lost that first fight when the courts ruled key elements of the Macintosh user interface were not eligible for copyright protection. Unfortunately, in the last 20 years, the courts have made it much easier to acquire software patents. Apple now has more powerful legal weapons at its disposal this time around, as do its competitors. Together, there's a real danger that the smartphone wars will end by stifling competition.

Multitouch in the lab

High-tech innovations are often developed by laboratory researchers long before they're introduced into the commercial market. Multitouch computing was no exception. According to Bill Buxton, a multitouch pioneer now at Microsoft Research, the first multitouch screen was developed at Bell Labs in 1984. Buxton reports that the screen, created by Bob Boie, "used a transparent capacitive array of touch sensors overlaid on a CRT." It allowed the user to "manipulate graphical objects with fingers with excellent response time."

In the two decades that followed, researchers experimented with a variety of techniques for building multitouch displays. A 1991 Xerox PARC project called the "Digital Desk" used a projector and camera situated above an ordinary desk to track touches. A multitouch table called the DiamondTouch also used an overhead projector, but its touch sensor ran a small amount of current through the user's body into a receiver in the user's chair. NYU researcher Jeff Han developed a rear-projection display that achieved multitouch capabilities through a technique called "frustrated total internal reflection."

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Jeff Han demonstrating his multitouch work in 2006.
TED


While they refined multitouch hardware, these researchers were also improving the software that ran on it. One of the most important areas of research was developing a vocabulary of gestures that took full advantage of the the hardware's capabilities. The "Digital Desk" project included a sketching application that allowed images to be re-sized with a "pinch" gesture. A 2003 article by researchers at the University of Toronto described a tabletop touchscreen system that included a "flick" gesture to send objects from one user to another across the table.

By February 2006, Han brought a number of these ideas together to create a suite of multitouch applications that he presented in a now-famous TED talk. He showed off a photo-viewing application that used the "pinch" gesture to re-size and rotate photographs; it included an on-screen keyboard for labeling photos. He also demonstrated an interactive map that allowed the user to pan, rotate, and zoom with dragging and pinching gestures similar to those used on modern smartphones.

Commercializing multitouch

In 2004, a French firm called Jazzmutant unveiled the Lemur, a music controller many consider the world's first commercial multitouch product. The Lemur could be configured to display a wide variety of buttons, sliders, and other user interface elements. When these were manipulated, the device would produce output in the MIDI-like Open Sound Control format. It debuted in 2005 and cost more than $2,000.

The market for the Lemur was eventually undercut by the proliferation of low-cost tablet computers like the iPad. But Jazzmutant now licenses its multitouch technology under the name Stantum. It raised $13 million in funding in 2009.

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Jazzmutant Lemur in 2005 - sonicstate.com

Jeff Han also moved to commercialize his research, founding Perceptive Pixel in 2006. The firm focuses on building large, high-end multitouch displays and counts CNN among its clients. The DiamondTouch also became a commercial product in 2006.

Microsoft says its researchers have worked on multitouch technologies since 2001. Microsoft's Andy Wilson announced Touchlight, a multitouch technology using cameras and a rear projector, in 2004. Touchlight had an interface reminiscent of Minority Report — a three-dimensional object would be displayed on the screen and the user could rotate and scale it with intuitive hand gestures.

Wilson was also a key figure in developing Microsoft Surface, a tabletop touchscreen system that used a similar combination of a rear-projected display and cameras. According to Microsoft, the hardware design was finalized in 2005. Surface was then introduced as a commercial product in mid-2007, a few months after the iPhone was unveiled. It too used dragging and pinching gestures to manipulate photographs and other objects on the screen.

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Microsoft's Touchlight in 2004

Another key figure in the early development and commercialization of multitouch technologies was Wayne Westerman, a computer science researcher whose PhD dissertation described a sophisticated multitouch input device. Unlike the other technologies mentioned so far, Westerman's devices weren't multitouch displays; they were strictly input devices. Along with John Elias, Westerman went on to found FingerWorks, which produced a line of multitouch keyboards that were marketed as a way to relieve repetitive stress injuries.

Fingerworks was acquired by Apple in 2005 and Westerman and Elias became Apple employees. Their influence was felt not only in the multitouch capabilities of the iPhone and the iPad, but also in the increasingly sophisticated multitouch capabilities of Mac trackpads.

Touchscreen phones

IBM's Simon, introduced in 1993, is widely regarded as the first touchscreen phone. It had a black-and-white screen and lacked multitouch capabilities, but it had many of the features we associate with smartphones today. Users dialed with a onscreen keypad, and Simon included a calendar, address book, alarm clock, and e-mail functionality. The e-mail app even included the ability to click on a phone number to dial it.

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IBM's Simon, introduced in 1993 - TekGadg

The Simon was not a big hit, but touchscreen phones continued improving. In the early 2000s, they gained color screens, more sophisticated apps, and built-in cameras. They continued to be single-touch devices, and many required a stylus for precise user input. Hardware keypads were standard. These phones ran operating systems from Microsoft, Palm, Research in Motion, and others.

April 2005 saw the release of the Neonode N1m. While lacking the sophistication of the iPhone, it had a few notable features. It was one of the few phones of its generation not to have a hardware keypad, relying almost entirely on software buttons for input. It supported swiping gestures in addition to individual taps. And it employed a "slide to unlock" gesture, almost identical to the one the iPhone made famous.

More sophisticated touchscreen interfaces began to emerge in 2006. In October, Synaptics unveiled the Onyx, a proof-of-concept color touchscreen phone that included a number of advanced features. While it may not have been a true multitouch device, its capacitive touch sensor included the ability to tell the difference between the user's finger and his cheek (allowing someone to answer the phone without worrying about accidental inputs) and to track a finger as it moved across the screen.

The Onyx's phone application had an intuitive conference calling feature, and the device included a music player, an interactive map, and a calendar.

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LG Prada in March 2007 - giiks

That December, LG announced the LG Prada — beating the iPhone to market by several months. The two devices shared several common features. The Prada dispensed with a traditional keypad, relying on software buttons for most input. It included the ability to play music, browse the Web, view photos, and check e-mail.

The iPhone was finally unveiled in January 2007. LG accused Apple of copying its design, saying it was disclosed in September 2006 in order to compete for an IF Design Award (which it won). The accusation doesn't hold much credibility, however. Although the phones have undeniable similarities, the iPhone features a more sophisticated user interface. For example, the iPhone used the flick-to-scroll gesture now common on smartphones; the LG Prada used a desktop-style scroll bar. The two phones were likely developed independently.

So is Android a stolen product?



Great artists steal

In a sense, the answer is almost certainly "yes." It's hard to imagine how Google could have prevented some iPhone innovations from seeping into Android design. The iPhone was the talk of Silicon Valley in 2007 and 2008. It would have been practically impossible for the Android development team to avoid learning about iPhone features. Once Google's engineers were exposed to the concepts Apple pioneered, they couldn't help but be influenced by them.

But if Google is guilty of using Apple's ideas, Apple is equally guilty. Many researchers and companies invented technologies that predate the iPhone but made it possible. As Microsoft's Buxton points out, Wayne Westerman (the multitouch researcher who sold his startup and became an Apple employee in 2005) cited the work of numerous early multitouch researchers in his 1999 PhD thesis. The iPhone incorporated key innovations pioneered by Bob Boie, IBM, Jazzmutant, Jeff Han, and others.

Indeed, what made the iPhone such a great product was precisely that Apple drew together a number of innovations already developed separately—touchscreen phones, capacitive touchscreens, sophisticated multitouch user interfaces—and combined them in a product greater than the sum of its parts. This pattern of combining and refining of previous innovations is the rule, not the exception, in innovative industries. Android is simply the latest example of the pattern.

While Android clearly adapted some important iPhone innovations, Google's engineers also added refinements of their own where they felt Apple's approach lacked them. For example, the early iPhone notification system left much to be desired. As we put it last year:

Quote:
"Every new SMS or push alert showed up as a modal dialog box in the center of the screen, forcing the user to make a decision immediately. The system also offered no way to see multiple notifications at once"


Google came up with a more flexible notification scheme. Rather than presenting them in a modal dialog box requiring immediate input before a user could proceed, Android displayed notifications briefly at the top of the screen, then added an icon atop the screen to signal existing notifications. When a user was ready to respond, she simply pulled down the notification bar to see a list of all pending notifications.

Image
The Notifications Center in iOS 5, 2011 - Apple Inc.

Apple revamped its notification system in iOS 5, introducing a Notifications Center that was strikingly similar to Android's notification scheme. Apple added its own refinements, such as the ability to add widgets displaying the weather, stock prices, and other frequently-updated information. But the basic approach—notifications displayed at the top of the screen accessible through a pull down gesture—is virtually identical to the approach Google invented.

Users benefit from this kind of copying. Google's notification scheme was better than the original iPhone notifications, so it is in iOS users's interests for Apple to copy the idea. The alternative—a world in which companies scrupulously avoid using each other's ideas—would be much worse. It would become impossible to buy a smartphone incorporating the best innovations from across the industry.

Inventing in the dark

Legally, the question is whether Google infringed on Apple's patent, copyright, or other possessions. Google appears to be on safe ground from a copyright perspective. Android is built on Linux and uses a Java-like virtual machine; iOS is built on Darwin and uses NeXT-derived Objective C frameworks. We don't know of any allegations that Android was developed with literal copies of iOS code.

But whether Google infringed on Apple's patents is a harder question. And it would have been especially difficult to answer as Google was creating the first versions of Android.

Patent law generally gives a firm like Apple one year from the public disclosure of an invention to file for a patent on it. Apple unveiled the iPhone in January 2007, so the filing deadline for iPhone-related inventions would have been in January 2008. After filing, there is an additional 18-month delay before applications are made public. So if Apple filed an iPhone-related patent application on the last day before the deadline, Google wouldn't have learned of its existence until July 2009—almost a year after the first Android phone hit the market.

And even after patent applications are made public, it can take several more years for the patent office to make a decision on them. There's also no certainty about what a granted patent covers or whether it will stand up in court.

In short, Eric Schmidt's Android development team would have had no idea in 2008 which ideas were, legally speaking, Apple's ideas. The only foolproof way to avoid infringing Apple's patents would have been to avoid a multitouch phone OS at all.

History repeating

Steve Jobs eventually made good on his threats against Android. While Apple has not sued Google directly, Cupertino is now locked in legal battles with a number of major Android vendors. And unlike Microsoft, which has focused on signing licensing revenues with its patents, Apple seems genuinely determined to drive Android devices off the market.

Image
Xerox Alto, which pioneered the graphical user interface in the 1970s - Marcin Wichary

This isn't the first time Apple built a new user interface based on the ideas of others, then sued competitors for using those same ideas. The graphical user interface now standard on desktop computers can be traced back to the invention of the mouse by SRI's Doug Engelbart in the 1960s. The ideas were refined at Xerox PARC in the 1970s, where Steve Jobs famously led a group of Apple engineers to visit in 1979. Five years later, Apple introduced the Macintosh. Those ideas then found a much larger audience.

Microsoft scrambled to catch up, releasing the first version of Windows in 1985. In 1988, Apple filed a lawsuit accusing Microsoft of stealing the "look and feel" of the Macintosh. Xerox got involved in 1989 with a lawsuit accusing Apple of stealing the ideas behind the Macintosh from Xerox researchers. The courts eventually ruled key user interface concepts behind the Macintosh were not copyrightable, removing the legal cloud that had hung over early GUIs.

In many ways, today's smartphone litigation is a sequel to that far-off "look and feel" fight. But there's an important difference: a series of court decisions in the 1990s effectively legalized software patents. As a result, incumbents like Apple have more powerful legal weapons to use against would-be competitors.

Google has spent billions on patents to help it fight back against legal actions by Apple, Microsoft, and others. The search giant may have deep enough pockets to buy the patents it needs to defend itself, vindicating its right to compete in the mobile computing market.

But firms without billions may not be so lucky. The failure of Apple's original look and feel lawsuit cleared the way for smaller firms (like Jobs's own NeXT) to compete in the desktop computing market. In contrast, if a firm today has a great idea for a mobile OS but lacks thousands of patents or the billions of dollars it takes to acquire them, it will likely be defenseless against angry patent lawyers. Apple's demand that companies "stop using our ideas" will have real teeth.

That's bad for firms that want to get into the mobile OS market. It's also bad for users, who may be deprived of innovations these firms can bring to the market. But it's great for patent lawyers.

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 Post subject: Re: Apple vs Android: Patent Wars
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An older article from September 2011, but the idea is still current.




Owning the stack: The legal war to control the smartphone platform

By James Grimmelmann | Arstechnica.com


Image

In the last few weeks, the smartphone industry appeared to produce more lawsuits than phones. Apple briefly managed to stop the sale of the Samsung Galaxy Tab 10.1 in all of Europe, and is now going after the whole Galaxy line. Back Stateside, Google first complained that Microsoft and Apple were using "bogus patents" to target Android, then spent $12 billion for Motorola and its patent arsenal. These are big, high-stakes fights—and the last company left standing may walk away with control over nothing less than the smartphone market itself.

In the flood of stories about tactical filings and counter-filings, it's easy to get lost in the details. But step back and it's clear that the Smartphone Wars aren't just a war of all against all; there's an underlying logic to these disputes. Most companies are fighting to control one part of the hardware-software stack, then use that control to pry money free from the layers above them.

But the really big players—the Apples and Googles of the world—are fighting over the stack itself. Their combat arena: the global legal system.

Meet the stack

A smartphone's "smarts" require plenty of tech. Think about all the layers that come together so that you could play Angry Birds on your iPhone:

> The app itself: Rovio's Angry Birds
> The operating system that supports downloadable apps: Apple's iOS
> The device that runs the OS: the iPhone, also by Apple.
> The cellular network that the device connects to: AT&T or Verizon in the US

These different parts make up a stack: layers that fit together, each one on top of the next, to do cool things for users. Good combinations sell well, making money for the participants. Everyone wants to be part of a winning stack, but even better is to be the bottleneck in a winning stack so that everyone else can join in only on your terms—and at your price.

Image

Enter the law. Players in the Smartphone Wars use lawsuits and threatening letters on law-firm letterhead to secure the ground on which they stand, or to cut the ground out from beneath someone else, all seeking to secure or bolster their place in the stack. There are three kinds of plays:

Horizontal plays are disputes between players at the same level in the stack. The goal is to keep a competitor from imitating you too closely. When app developers copy each others' names, icons, and artwork, that's a horizontal issue: they're competing for the same consumer dollars by doing the same kind of thing a little too slavishly. The law here—primarily copyright, trademark, and patent—is all about balance. With weak protections, copycat ripoff artists come out of the woodwork; with strong protections, the problem is trolls.

Vertical plays try to seize control of the stack from the players above (and sometimes from the players below). Think about the iPhone's anti-jailbreaking features, which are designed in part to ensure that no one puts an app on an iPhone unless they pay Apple's 30 percent toll. This is a subtle game; companies want to be open enough to be part of a rich and vibrant stack, but closed enough to capture value from the other layers. Copyright and the DMCA do a lot of work here, with antitrust increasingly pushing back against them.

Strategic plays target an entire stack. The all-out patent wars now coming to a boil are strategic: if some of Apple's lawsuits succeed, the whole Android stack could end up toast. There are also plays here designed not to shut down a competitor but to hold a stack upside down and shake it until all the money falls out. Patents are the preferred weapon here. Since there's no "independent invention" defense, a well-aimed patent barrage can land without warning and leave nowhere to hide.

So here's the plan: we'll start at the bottom of the stack and move up, looking at the horizontal and vertical plays taking place at each level. Then we'll circle back and look at the all-out assaults on the different competing stacks.

Controlling the Network

Vertically, life at the network layer is regulated by the Federal Communications Commission. The FCC allocates blocks of spectrum to the carriers, usually by auction. In order to start running a cellphone network, you need to persuade the FCC either to make more spectrum available (which doesn't happen often but may be in the works through a reallocation of the UHF TV spectrum) or buy access from someone who has spectrum already. At the moment, the four biggest US networks are run by Verizon, AT&T, Sprint, and T-Mobile (AT&T's proposed merger with T-Mobile has run into trouble over fears that it would lead to too much concentration and too little competition.)

Horizontally, the carriers have been known to throw some sharp elbows at each other in their cutthroat competition for subscribers. In 2009, AT&T sued Verizon over Verizon's "There's a Map for That" commercials making fun of AT&T's lackluster 3G coverage. A judge sided with Verizon in the first round of skirmishing, and the companies quickly settled after that.

Controlling the device

Moving up to the device layer, let's start with vertical controls by the network operator over devices. Most often, whoever owns a block of spectrum can set whatever rules they want about who can use it and on what terms. One partial exception is the "700Mhz block," which was auctioned off in 2008. Google entered the bidding and forced the price up enough to trigger open access rules allowing consumers to use devices and applications of their choice. Google—whom we'll meet repeatedly as we reach the higher layers of the stack—is concerned that anyone with too much control at a lower layer could use that control to squeeze free some of the cash pouring out of its search advertising money machine by threatening to cut off access unless Google pays up. (This same fear of being squeezed drives Google to support network neutrality, albeit half-heartedly.)

The traditional model in the industry was that carriers would use their more-or-less absolute lock on the network to take the upper hand in negotiating with device makers over which phones would be available on which networks. The only way for device makers to fight back was to have a truly compelling phone that users would actually switch carriers to use. RIM pulled it off with the CrackBerry, then Apple managed to talk Cingular/AT&T into unusually generous terms, including higher-than-usual subsidies for the iPhone and more control over iPhone packaging and sales. Another alternative for device makers is to route around the carriers by going WiFi-only: the iPod Touch is effectively a "phone-less phone."

Unsurprisingly, carriers also want to convince customers—willingly or unwillingly—not to switch networks once they have the phone, which means taking a little control over the phone itself. Early termination fees, backed up by contract law, are the first line of defense. But there's also a technical angle. Locking is an antifeature that keeps the phone from working on any other network. Presto: the cost to switch carriers has just gone up by the price of a new phone. For this reason, there has always been a thriving business in unlocking cell phones and in telling other users how to unlock them. And that doesn't make the carriers happy. Tracfone, a cellphone company that sells prepaid by-the-minute plans, started suing retailers who unlocked its phones for a violation of the DMCA. (The "copyrighted work" in question is the software on the cell phone itself.) This led the Library of Congress to exempt unlocking from parts of the DMCA in 2006 and again in 2010. Tracfone, though, has kept on suing unlocking retailers, and has even won despite the exemption.

Horizontally, there have been some fairly silly lawsuits over phone names. Would you have thought that Motorola's DROID should get a license from George Lucas? Or that ANDROID itself might step on the toes of Android Data's rights? (A judge held that it didn't.) Would a phone-buying consumer think that Google's NEXUS comes from the estate of Philip K. Dick? Google also had trouble with a similar mark from a telecom company; Google's successful defense was that tons of other computer and telecom companies use NEXUS (not exactly the best defense of Google's own trademark rights in the word). More recently, Motorola has been sued by Xoom Wireless over the XOOM. You might also remember the BLACKBERRY vs. BLACKJACK dispute, or the brief Cisco-vs.-Apple fight over IPHONE.


Owning the stack: The legal war to control the smartphone platform
By James Grimmelmann | Published September 11, 2011 8:00 PM
Controlling the operating system

Some device makers roll their own operating systems, like RIM with BlackBerry OS and Apple with iOS. Others pay to license an OS like Windows Phone for their own hardware. Google's Android is an interesting twist on the latter model; the software is open source and the license price is $0. Once again, Google is determined not to let its search business be outflanked by a lower-layer play; widespread availability of Android is a way of keeping any other software maker from locking up the operating system layer. Then again, Google's proposed purchase of Motorola may be a blow to the licensing system; it's hard not to imagine that Motorola would quickly become Google's preferred partner. Antitrust scrutiny of the merger is a "given"; the deal includes a whopping $2.5 billion breakup fee if Google fails to close the deal because of antitrust problems.

Much like at the network layer, the vertical question here is how a device maker keeps users tied into its preferred operating system once they have the phone. Just as at the network layer, the first line of defense is technical: the phone comes with firmware that prevents the user from installing unapproved software, hence the jailbreaking wars. (To be precise, an "unlocked" phone can work on other networks, while a "jailbroken" phone can run unapproved software.) The device makers have tried to make jailbreaking hard, with decidedly limited success—to the point that Microsoft simply gave up and approved a Windows Phone 7 jailbreaking tool. They've also tried to make jailbreaking unappealing by trying to disable features on jailbroken phones, by blowing away jailbreaks with software updates, and by muttering about how it will "degrade the experience" and void your warranty.

And just as in the network layer, the second line of defense is legal: the OS owner can use the DMCA and copyright law to fight jailbreakers. The Electronic Frontier Foundation, recognizing this possibility, asked the Library of Congress to create a DMCA exception for jailbreaking phones, which the Library did in 2010 over Apple's objections. Apple and AT&T are also facing an antitrust lawsuit over the iPhone's anti-jailbreaking features, which may end up foundering on the shoals of the Supreme Court's decision to uphold the clause in AT&T's subscriber agreement requiring arbitration rather than lawsuits.

Android puts some interesting twists on this back-and-forth. Google likes to emphasize Android's open-source bona fides. In Android head honcho Andy Rubin's words:

the definition of open: "mkdir android ; cd android ; repo init -u git://android.git.kernel.org/platform/manifest.git ; repo sync ; make"

His point is that since Android comes with source code, you're not locked into the decisions that Google has made: you could whip up your own version of Android in between the "sync" and "make" steps.

That's the theory, anyway. The practice is a little trickier: Android is not a completely IP-free zone. For one thing, the basic Android OS may be open-source licensed, but Google bundles it with proprietary components, like its own Maps application. Would-be developers are faced with the hassle of disentangling the one from the other. For another, Google has started slow-walking its public releases of actual source code. The practical result is that Google knows things about Android that others don't, which gives it an edge.

Trademark is also part of Google's Android strategy. You can't use the ANDROID trademark unless you pass compatibility requirements, which include complying with a 25-page requirements document and passing a test suite. One company, Skyhook Wireless, has alleged that Android compatibility is a vague standard that Google manipulates at will to squelch competitors. Skyhook turned up an e-mail from a Google manager saying that compatibility was a "club to make [device makers] do things we want." (In court, Google won the first round and lost the second; the case is ongoing.)

Finally, even source code and an "open" license don't guarantee that an Android phone will be open in other ways. Because Android is available under the Apache license, device makers are free to modify it as they see fit, with no requirement to relicense their changes or to provide source code. Some have performed the device equivalent of total conversions: Barnes and Noble's Nook Color e-book reader is an Android tablet, though casual users need never know it. Other device makers are more tactical: they reskin Android, preload "junkware", and lock down features like WiFi support. These moves aren't surprising: the device makers want to build their own platforms rather than being commodity parts of Google's empire, while the carriers don't like features that eat into their business models. Unsurprisingly, the jailbreakers are on the case.

There are horizontal disputes at the operating system level, too. Apple is currently suing Samsung on multiple fronts, claiming that the Galaxy line of phones and tablets "slavishly" copied from the iPhone. There are patent claims and counter-claims in there, but also some extensive trademark claims relating to the phones' interfaces. Check out the side-by-side comparisons; would you as a cell phone buyer be confused as to who made the Galaxy and whether it's an iPhone?


Controlling the apps

App stores were pretty anemic until Apple came along. Carriers had small stores with apps (read: "lame-o games") and content (read: "lame-o ringtones") that were often maddeningly phone-specific because of the highly fragmented market. This happened at a time when the stack bottleneck was at the carrier level. RIM offered downloads for the BlackBerry, but Asteroids and Dope Wars clones weren't much to write home about. Although the iPhone launched without an app store, and Steve Jobs was roundly mocked for saying that app developers should just write Web apps, when the iPhone App Store finally launched, it was a doozy. Now, app stores are de rigueur for serious stacks. The Android Market may lag behind Apple's offerings, but it's still a serious app store with significant depth. Even the Cydia directory of apps for jailbroken iPhones is an app store in all but name. HP's ignominious retreat from the phone and tablet markets can arguably be laid at the feet of HP's inability to build critical mass for its App Catalog.

The value of app stores is reflected in Apple's crusade to claim trademark rights over the phrase APP STORE. This is a horizontal dispute: Apple wants to make other companies' app stores marginally less attractive by insisting that they have slightly less catchy names than Apple's own store. But the argument is both silly and legally weak. An app store is a store. That sells apps. That's true whether it sells iPhone apps or Android apps or webOS apps. Microsoft opposed Apple's attempt to register APP STORE as a trademark, and last month, Amazon won the right in federal court to continue using the phrase in the name of its Amazon Appstore for Android.(Apple has had more success in Germany.)

Vertically, operating system creators have a lot to say about which apps they'll allow and which they won't. Apple, of course, is known for its stringent review process, including some 119 rules—which were made public only after long and sustained criticism. Apple says that its policies are aimed at improving the quality of the iPhone and the App Store for its users. But they're also aimed at improving the iPhone platform for Apple. While some users may not mind interface monstrosities, fart noises, or a WikiLeaks app, Apple sees them as bad for its brand. More dramatically, Flash isn't just a badly coded CPU hog, it also threatens to slip another layer into the stack and weaken Apple's control, so it's no surprise that the iPhone is a no-Flash-allowed zone. And let's not even get into the contortions Apple has gone through to keep developers from doing end-runs around Apple's 30 percent cut on all in-app purchases.

The Android Market is more notoriously a free-for-all, with looser enforcement (and more spam and copycat apps). But it's not completely unmanaged: Google pulled gaming emulators from the Market, even though the trademark and copyright cases against them are far from clear-cut. And when malware strikes Android users, Google strikes back and removes it from the Market—and even sometimes uses a remote kill switch to automatically remove it from infected phones.

The really interesting app store approval controversies involve apps that the carriers don't like. These are long-distance plays that span the entire stack: network operators use their relationships with device makers to insist on operating system restrictions on apps! The carriers want to charge for "tethering" your phone so your computer can use a phone's cellular connection, so they try to prohibit tethering apps that would let you do this for free. Apple plays along and doesn't allow tethering apps at all in the iOS App Store; in the Android Market, tethering apps are unavailable for some carriers. AT&T and Verizon have announced that they will start revoking unlimited data plans for users who get around this restriction by jailbreaking. The advocacy group Free Press filed a complaint with the FCC against Verizon, claiming that the restrictions violated the 700MHz block open access conditions.

Apple also allegedly blocked Google Voice in 2009, leading to speculation that AT&T was pulling the strings. An FCC investigation followed, during which Apple claimed that Google Voice would "alter the iPhone’s distinctive user experience." But then a year later Apple approved Google Voice, so who knows?

Horizontally, trademark and copyright issues are also endemic within the smartphone app stores. Sometimes the ripoffs are utterly shameless. The line can be blurry: it might be okay to make a Breakout clone but not to call it "Breakout." Can one have an exclusive right to sell apps that make it look like you're drinking a beer out of your phone? One developer thought so, and now claims rights over chocolate milk as well. And who could forget that classic of jurisprudence: Pull My Finger v. iFart Mobile?

The fact that these apps are being sold through app stores changes the legal picture a bit. Instead of bringing a lawsuit, the first step may be to complain to the app store owner and ask them remove the app. But this is a sword that cuts both ways; is your app too similar to Tetris in Apple's sole and unappealable discretion? Buh-bye. Is your independent game named "EDGE"? Then look out for trademark trolls. (This particular troll eventually overreached.) Apple's quick trigger finger in response to claims of infringement can be a developer's nightmare. And perhaps the fox is guarding the henhouse; sometimes features from third-party apps find their way into iOS itself.

War of the stacks

Finally, we have the strategic assaults on the stack itself, with the goal either of shutting it down or extracting every last cent possible. There are now so many smartphone patent suits that just keeping track of them is a difficult exercise. Things have gotten so intense that individual lawsuits may be nothing more than skirmishes in larger back-and-forth wars, like the way that Samsung and Apple are each suing each other in a sprawling international dispute. Despite the drama, these brouhahas often end with cash payments and licensing deals, like the recent Nokia-Apple settlement.

Of course, patent litigation, patent licensing, and patent trolling are nothing new. Where things get truly interesting is when a patent covers something so central to a stack that it the patent owner can threaten to shut the whole thing down. The real trend-setter here was NTP's lawsuit against RIM. NTP's patents covered core aspects of BlackBerry's push e-mail system, a feature RIM couldn't have deactivated without turning BlackBerries into near-bricks. Once RIM's challenge to the validity of NTP's patents failed, RIM had almost no choice but to settle in 2006 on NTP's terms, for a stunning $612.5 million. Tactically, NTP's lawsuit was simple: RIM was the obvious target, since it had the deep pockets and more or less was the complete BlackBerry stack.

More recent patent campaigns, though, have shown that it's possible to target other players as well. Lodsys, for example, which claims to have patents on in-app purchasing, has been strategically targeting iPhone and Android app developers. Lodsys isn't the first patent owner to go after app developers, but it's taken the shakedown strategy to a new level. Being smaller, app developers are more vulnerable than the big players; even Rovio pales in comparison with an Apple or a Motorola. Lodsys is hoping that the developers will just pay its .575 percent royalty rather than spend the immense sums required to litigate a patent lawsuit.

The responses to Lodsys show, however, that Apple and its developers understand that their fates are linked: they're parts of the same stack. Developers are banding together, and Apple has stepped forward, arguing in court that its license for Lodsys's patents also protects iPhone app developers. (Unsurprisingly, Lodsys disagrees.) What Apple can do may be limited: software patent analyst Florian Mueller thinks that Apple's and Google's license agreements may obligate them not to challenge the validity of the patents themselves.

This is also the pattern with the mounting patent thunderstorms around Android. Google is a defendant, to be sure, but so are its partners. Apple's lawsuit against HTC has been called a "proxy fight" against Android. One of Apple's moves shows how shifting up or down a level in the stack can add leverage. It has been filing complaints against HTC with the International Trade Commission, which can issue exclusion orders keeping infringing products from being imported into the US. Impounding their phones is a very good way to get a device maker's attention.

Microsoft's litigation against Motorola over its Android phones is similar: this is as much about Android as it is about Motorola's specific phones. Well, okay, maybe it's also a little bit about Microsoft still being peeved about Motorola's defection from Windows Mobile to Android. But Microsoft's suit against Barnes and Noble over the Nook and Nook Color—well, that's just about Android. Google's purchase of Motorola may simply take the middleman out of the picture and leave the two titans to pummel each other.

Then there's Oracle's suit against Google, which blends copyright, trademark, and patent. Java is in theory an open standard, with the JAVA trademark reserved for implementations that conform to the specification. Android runs a Google-created virtual machine named Dalvik that is highly Java VM-like but optimized for low-memory devices (e.g., it is register-based rather than stack-based). Because Dalvik's bytecodes differ from the official Java VM bytecodes, Google is careful not to call it a "Java" virtual machine. Nonetheless, Dalvik runs code written in Java and comes with Java libraries developed by Apache's Harmony project. Oracle claims that Dalvik isn't truly clean-room—that Google copied some of Oracle's actual code. Moreover, because Dalvik is not an implementation of the Java VM spec, Oracle claims it falls outside the patent license that automatically protects spec-compliant implementations.

Apple, Microsoft, Oracle—Little wonder that Google feels a little ganged up on. In a recent blog post, Google's Chief Legal Officer, David Drummond, argued that the company's rivals were engaged in "a hostile, organized campaign against Android" using "bogus patents." He also pointed out that consortia with members including Microsoft and Apple have been buying up pools of patents from Novell and Nortel, a move that Drummond called "anti-competitive." Then Microsoft General Counsel Brad Smith shot back with a tweet that Google itself had turned down the chance to be part of the Novell patent consortium. Drummond's response was that being part of the Microsoft team would have "eliminated any protection these patents could offer to Android against attacks from Microsoft."

Neither side comes out particularly well from this exchange. On the one hand, Google has a point about the low quality of software patents. And even if the patents are valid, the cynicism of buying up patents to put the squeeze on a rival is pretty ugly. A hypothetical Apple-Google lawsuit, say, would be a lawsuit against a company that didn't invent the technology at stake ... by a company that didn't invent it, either. On the other hand, Google had the chance to make offers and decided it wasn't worth the cash (even though the company has almost $40 billion burning a hole in its pocket). And when Drummond talked about "protection," he wasn't talking about the patents giving Google a defense from the guys with the baseball bats who bust your kneecaps if you don't pay up. No, he meant that Google wanted a baseball bat of its own so it could start busting kneecaps in revenge. Motorola's 17,000+ mobile-related patents are a $12 billion bat.
Conclusion

It's hard to work through this list without getting first exhausted, then jaded, then angry. (Your own emotional order may vary.) The law helps protect real innovators, from the smallest one-person app developer to the huge teams that create new devices and new operating systems. But the sheer, baroque profusion of lawsuits and threats signals a system out of balance. The future of the smartphone market is cloudier than it ought to be—and the increasing dominance of intellectual property lawyers is in large part to blame.

James Grimmelmann is an Associate Professor at New York Law School.

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Samsung fails to get Galaxy Tab ban in US lifted pending appeal

Fruitsters favourite in fondleslab fisticuffs


By Brid-Aine Parnell • The Register



Samsung has been denied a stay on the preliminary injunction against the Galaxy Tab 10.1 in the US.

The Korean firm was trying to hold up the ban on the fondleslabs until it had a chance to appeal the ruling, but US Judge Lucy Koh said that the injunction would go ahead.

Judge Koh originally denied Apple the chance to stop imports of the 10.1, but the fruity firm appealed to the Federal Circuit court, which came down on the iPad-maker's side. As a result, Koh issued the ban last week.

In order to get the judge to put a hold on the ban, Samsung needed to prove a number of things, including that it would suffer "irreparable harm" if the injunction wasn't stayed and it was likely to win its appeal against the ruling.

Unfortunately, the company rather shot itself in the foot by saying after the ruling that it wasn't bothered about the ban because the successor to the 10.1 tablet was already on the market.

"Samsung has not met its burden of establishing that it will likely face irreparable injury absent a stay of the preliminary injunction," Judge Koh said in a court filing. "Samsung representatives have stated publicly that Samsung projects no significant harm as a result of the preliminary injunction."

The firm's attempts to show that it would probably win its appeal also failed to convince the judge and she said that anyway it had the $2.6m bond put up by Apple to cover any losses.

"This Court followed the Federal Circuit's remand instructions, and in any event, the "new evidence" cited by Samsung is unlikely to change either this Court's or the Federal Circuit's assessment of the merits," the judge said.

The American front of Samsung's patent war with Apple is not looking good for the Korean tech giant, which is also facing a ban on Galaxy Nexus phones. That's another ban the firm is trying to get stayed with Judge Koh pending an appeal.

The Nexus ban also affects Google, as it's the search giant's flagship Android mobe of the moment. According to The Korea Times, the block has drawn the Chocolate Factory into the fight to plan tactics with Samsung.

"It’s too early to comment on our game plan (with Google) in the legal battle; but we will do our best to get more royalties from Apple, which has benefited from our technology," a Samsung insider reportedly said.

"The fight is becoming more dramatic and the possibility of a truce in the form of a cross-licensing deal, seems to be becoming likely."

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 Post subject: Re: Apple vs Android: Patent Wars
PostPosted: Wed Jul 04, 2012 3:36 pm 
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Samsung fails to stall Galaxy Nexus sales ban

Google pulls mobe from Play store, works on fix


By Brid-Aine Parnell • The Register




Samsung's bad luck in the US courts continues after Judge Lucy Koh refused to delay a ban on its Galaxy Nexus smartphones.

The South Korean electronics giant tried to get a stay on the preliminary injunction won by Apple while it appealed the decision, but Judge Koh was having none of it.

The iPhone maker was granted the sales ban after claiming the Galaxy Nexus, which is Google's flagship Android mobe, infringes four patents. The injunction was imposed on the strength of one of these designs, known as the 604 patent, which relates to searching for information via a single interface and using heuristics to identify the best results to show. Imagine typing a contact's name into a box and have hits in your address book, files and email appear.

"The court is not persuaded that Samsung has raised any substantial questions concerning infringement or that Samsung has shown a likelihood of success on non-infringement on appeal," the judge said in her ruling, adding that she didn't think Samsung had much chance of declaring Apple's patent invalid either.

Google has pulled the Nexus from its US Play store, and the phone has been changed from "for sale" to "coming soon" with no other information.

Google and Samsung are said to be working on releasing a patch for the Nexus' software to address the infringement allegations. The pair are also expected to go to the US Patent and Trademark Office to look for a re-examination of Apple's 604 patent in the hopes of getting it declared invalid, most probably on the basis that the idea of a unified search interface was around long before Apple patented it.

Google and Samsung both declined to comment.

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 Post subject: Re: Apple vs Android: Patent Wars
PostPosted: Sat Jul 21, 2012 6:21 am 
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UK judge hands Samsung win for being 'not as cool' as iPad

Apple's 'understated and extreme simplicity' works against it


By Rik Myslewski • The Register



A UK judge has handed Samsung a victory in its court battle with Apple over design similarities between its Galaxy Tab line and the Cupertinian iPad – but for a reason sure to rankle the Korean manufacturer's design department.

Speaking of Samsung's fondleslabs, UK High Court Judge Colin Birss ruled, "They do not have the same understated and extreme simplicity which is possessed by the Apple design. They are not as cool."

Sometimes being the coolest kid on the block has its disadvantages – and it appears that Birss is quite the Apple fanboi. "The extreme simplicity of the Apple design is striking," he ruled. "The design looks like an object the informed user would want to pick up and hold. It is an understated, smooth and simple product. It is a cool design."

At the heart of Birss' ruling, however, is not mere coolness. From his point of view, Samsung is not copying the iPad; instead, both devices are members of the same family. "The front view of the Apple design takes its place amongst its kindred prior art," Birss said, citing such pre-existing tablet devices as those from Flatron, Bloomberg 1 and 2, Ozolins, Showbox, and Wacom.

"They are not identical to each other but they form a family," Birss ruled, noting that "From the front both the Apple design and the Samsung tablets look like members of the same, pre-existing family."

Of the Samsung Galaxy Tab devices, he said, "From the front they belong to the family which includes the Apple design; but the Samsung products are very thin, almost insubstantial members of that family with unusual details on the back."

Apple, as might be guessed, disagrees with the ruling. "It's no coincidence that Samsung's latest products look a lot like the iPhone and iPad," an Apple spokesman told Reuters. "This kind of blatant copying is wrong and, as we've said many times before, we need to protect Apple's intellectual property."

Samsung believes that Apple's legal wrangling is hurting the industry. "Should Apple continue to make excessive legal claims in other countries based on such generic designs," the company said in a statement, "innovation in the industry could be harmed and consumer choice unduly limited."

The UK dustup is just one of many in which Apple is attempting to halt Galaxy Tab sales due to what it argues is Samsung's infringing design. Just last week, for example, a US judge denied Samsung's appeal to stay an injunction that had been placed on the Galaxy Tab 10.1 in late June, preventing its sale in the States. Similar legal action is also underway in Germany, the Netherlands, and elsewhere.

Birss gave Apple 21 days to appeal his ruling. The Reg, however, humbly suggests to those in the corner offices at 1 Infinite Loop who make such decisions to strongly consider forgoing further action.

After all, such petty bickering is most definitely uncool.

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 Post subject: Re: Apple vs Android: Patent Wars
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Samsung SMACKDOWN: US appeals court keeps ban on Galaxy Tab


Not listening to that Limey judge, nossiree


By Brid-Aine Parnell • The Register



A US appeals court has denied Samsung's second try at holding up a ban on its Galaxy Tab 10.1 in the country.

District Judge Lucy Koh already said that the preliminary injunction she ordered wouldn't wait until Samsung had completed its appeal against it and the Court of Appeals has backed her up.

The Korean chaebol has no doubt been popping the champagne corks as a UK court decided that Tabs weren't as cool as iPads so they couldn't be copies and, oh yeah, Apple should have to take out ads and paper its website with notices saying so. But on the other side of the Atlantic, the firm is not doing so well in court.

On top of the Court of Appeals' decision to not to stay the injunction on Tabs, it also refused a request to speed up the appeal process.

"Samsung may of course significantly self-expedite the case by filing its own brief early. Samsung, however, has not shown that the time for Apple to file its brief should be shortened," the court said in its ruling.

The Tab 10.1 was banned by Judge Koh while the case rumbles on through the courts. Although Apple has to put up a bond of millions, which will be given to Samsung if it ends up winning, the Korean firm is not going to want its gear off the shelves for too long. After all, punters aren't going to wait for Samsung to win its cases before buying fondleslabs.

The only ways left to Samsung to get the ban on lifted are to wait for trial to start on July 30 or design around the single design patent that Apple won the injunction for.

That patent is "the ornamental design for an electronic device", which kind of is the whole design of a tablet: it's also the patent the UK court used when making its decision that the Tabs didn't copy iPads.

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 Post subject: Re: Apple vs Android: Patent Wars
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Apple v. Samsung: Apple says Samsung is free-riding on $1 billion in marketing

On day two of testimony, jurors hear secretive history of the iPhone.


by Joe Mullin - Arstechnica.com


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Apple's Philip Schiller was one of the witnesses to take the stand today. Source: Justin Sullivan/Getty Images North America


SAN JOSE, CALIFORNIA—Apple's ambitious patent and trademark case against Samsung got into full swing on Friday, as two Apple executives took the stand, testifying about the company's creative process, and the huge marketing campaign that supports its flagship products.

Quote:
"You only have a split second" to sell the consumer


First came Philip Schiller, Apple marketing VP. Schiller spoke to the jury about how Apple got into the phone business, and how the company sold iPhones to a hungry public.

"We'd had this big hit called the iPod," Schiller began. "That really changed everyone's view of Apple, both inside and outside the company. People started suggesting every idea of what we should do next—make a camera! Make a car! Crazy stuff. We were searching for what to do after the iPod—what would make sense. We started to look at whether you could put entertainment content on cell phones. At that time, cell phones weren't any good as entertainment devices. That made us realize—maybe we should make our own phone."

Apple was new to the phone business, and was doubted by many, Schiller said. Apple lawyer Harold McElhinny started flipping through glowing press clips published shortly after the iPhone's unveiling. David Pogue, gushing about how Apple "Wave[d] its Wand at the Phone" and made magic; Walt Mossberg, the WSJ reviewer and Steve Jobs confidante who called the iPhone "a beautiful and breakthrough handheld computer" from day one. "This was a great review we were so happy to get," Schiller told the jury, looking at the Mossberg piece up on the courtroom screen.

Apple's surveys of iPhone customers had shown that "attractive appearance and design" was important to the great majority of them; in some surveys, more than 80 percent had rated those attributes somewhat or very important.

Then Schiller moved on to the marketing muscle that was put behind the products after launch. A graph was displayed showing investment in pushing iPhones and iPads to the public; from 2008 to 2011, the company had spent $647 million on iPhone publicity; meanwhile, $457 million was spent on marketing the iPad in just two years, 2010-11.

At the end of his testimony, McElhinny directed Schiller's attention to Samsung. "Do you recall the first time you saw a Galaxy S phone?" asked McElhinny.

"I do," answered Schiller.

"What was your reaction?"

"I was pretty shocked at the appearance of the Galaxy S phone, and the extent to which it appeared to copy Apple's products," said Schiller. In fact, it created problems for his marketing team. "Customers get confused about whose product is whose. With outdoor billboards, a customer is driving down the highway at 55 miles per hour—you only have a split second."

McElhinny's next question: "Are you opposed to competition?"

"No, competition is great," Schiller answered.

"Is copying fair competition?"

"Not at all," said Schiller. "When you copy or steal the idea of one company's product, you're trading off all that marketing and investment, all that goodwill we've created with customers. When you rip that off, you're trying to get all that benefit to yourself."

In his cross-examination, Samsung lawyer Bill Price drilled home the fact that many features—like larger screens—were simply driven by consumer demand.

"Apple didn't think it had the exclusive right to give the consumer a smartphone with a screen that could exhibit webpages and movies, did it?" asked Price.

"We did not have an exclusive right to play music or movies on phones," said Schiller.

"Do you think customers may have thought the Droid Charge is actually an iPhone?" asked Price later.

"I believe they may," he answered.

Quote:
"We all hated our cell phones... We wanted to build a phone for ourselves."


Next came Scott Forstall, a member of the top executive team at Apple, who testified about the secrecy-shrouded process of creating the iPhone.

To build the iPhone team, Forstall looked for "true superstars" at the company, he told the jury, and made them an offer. "I'd tell them, you're going to be incredibly successful at Apple if you just stay in your current role," began Forstall. "But I have another option for you. We're starting a new project, so secret I can't even tell you what the new project is. I can't tell you who you will work for. What I can tell you is, if you choose to accept this role, you're going to work harder than you ever have in your life—you're going to have to give up nights and wekeends, maybe for years, as we put together this project. Amazingly, some people accepted this challenge, and we built the iPhone team."

He was able to move Apple employees away from products they were currently working on, even when that delayed releases of other products, said Forstall. Secrecy infused everything about the project.

"We took one of the buildings we had in Cupertino, and we locked it down," he said. "We had doors with badge readers—to get into some of our labs you had to 'badge in' four times. The original iPhone was called the 'Purple Project.' I refered to this building as the purple dorm—it was very much like a dorm. People were there all the time, nights, weekends. On the front door we wrote the word 'Fight Club,' because the first rule about Fight Club in that movie is, you don't talk about Fight Club. I personally dedicated years of my life to this, as did hundreds of people on this team. It was very, very difficult."

On cross-examination, Samsung attorney Kevin Johnson honed in on how Samsung's products may have influenced Apple's own creative process. He displayed an email where Steve Jobs referenced a Samsung product, the E910; and asked him about "teardowns" in which Apple would do competitive analysis on competing products, including Samsung's.

Johnson also asked about an email from Apple exec Eddy Cue, who admitted he used a Samsung Galaxy Tab and found "email, books, facebook and video very compelling on a 7 inch."

The final witness of the day was Justin Denison, a Samsung official who was asked whether his company "considered, reviewed, or compared" any Apple materials while creating the products accused in the present trial. Denison stood by his testimony that the products were created independently.

Testimony continues Monday morning.

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 Post subject: Re: Apple vs Android: Patent Wars
PostPosted: Tue Aug 28, 2012 8:51 am 
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Samsung fights to stay on US shelves as Apple calls for ban

Injunction hearing scheduled for September


By Neil McAllister • The Register



Updated Now that the jury in the landmark Apple-Samsung patent trial has returned a $1bn verdict in Apple's favor, the next step will be to decide just which of Samsung's mobile phones will be permitted to be sold in the US.

Judge Lucy Koh has set a hearing on September 20 to discuss Apple's request to bar sales of Samsung products, Bloomberg reports, and the fruity firm is expected to file a one-page chart detailing exactly which models it seeks to block on Monday.

There were a total of 28 Samsung tablets and smartphones named in the patent lawsuit, although not all of them were found to have infringed Apple's patents in all circumstances.

Apparently, Samsung has chosen to see that as something of a silver lining. Even as Apple begins moving to block more Samsung products from the US, the South Korean device maker has taken this opportunity to request that a preliminary injunction against its Galaxy Tab 10.1 tablet be lifted, since the jury found that particular device had not infringed Cupertino's design patents. Furthermore, Samsung is asking for damages based on the business it has lost due to the sales ban.

But Apple is having none of it. Instead, it has asked that the existing injunction be extended to the version of the Galaxy Tab 10.1 with 3G wireless connectivity, even though that version wasn't named in the original patent lawsuit, Bloomberg reports.

Apple has not been shy about requesting bans on Samsung products in the past, and Judge Koh has been amenable to its wishes. In June, the iPod maker won an injunction against the Samsung Galaxy Nexus handset due to a patent conflict with its unified search feature, something that was not an issue in the recent trial.

In the case of the Galaxy Nexus, Google and Samsung modified the phone's software so that it would not infringe Apple's patent, and the mobile maker is expected to make similar changes to others of its products to get around any future injunctions.

Neither is a sales ban based on the outcome of the trial likely to severely impact Samsung's revenue. Of the specific devices named in the patent case, most are no longer available in the US, with the notable exception of the various Galaxy S II models.

Samsung launched the successor to that device, the Galaxy S III, in May, and a Samsung spokesperson told Bloomberg that the verdict in the patent case would not affect its release schedule for any future products.

Although Samsung has strived to maintain a cheery face following its devastating courtroom defeat, however, investors didn't seem to be buying it, with the South Korean firm's stock price dropping nearly 8 per cent on the news.

Update

Apple has filed a motion with the court listing eight Samsung devices for which it seeks injunctions. They are the Galaxy S 4G, the Galaxy S II (AT&T), the Galaxy S II (Skyrocket), the Galaxy S II (T-Mobile), the Galaxy S II (Epic 4G Touch), the Galaxy S Showcase, the Droid Charge, and the Galaxy Prevail. The Galaxy S II (i9000), which was also named in the patent trial, was not included in the request.

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 Post subject: Re: Apple vs Android: Patent Wars
PostPosted: Tue Aug 28, 2012 9:06 am 
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Seems like a lot of old stuff... wonder what Apple will sue them for once they remove any 'infringing' tech? :rolleyes:

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 Post subject: Re: Apple vs Android: Patent Wars
PostPosted: Tue Aug 28, 2012 9:53 am 
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Will this hit the UK too? As long as they can't take my S 2 off me I'm alright :p

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