Apple vs. Samsung: Not Really an Apple Win

While on the surface it looks that Apple won this round in court against Samsung. Apple did not really win.





1. The case is likely to go to appeal.
Comments from juror "because we had hard time believing there was no prior art, that there wasn't something out there before Apple. "In fact we skipped that one," Ilagan continued, "so we could go on faster. It was bogging us down."
"How can you determine whether the patents are invalid if you skip determining whether there was prior art? Determining if there was prior art is requisite to determining validity. The jury verdict is null and void."
(patnews@ns1.patenting-art.com)

2. Jury decisions regarding the design patents that Apple won were already designed around by Samsung, Google and the rest of android ecosystem. It will just temporally slow down android phone ecosytem.

3. Samsung did not lose in the tablet market, which is very important. This market is younger and tablet makers are trying to start a strong growth to counter iPad success.

4. A some what different prospective is in the article below has some good point about the momentum of  market acceptance of Apple and Samsung products.

Ron
www.maltiel.com




Microsoft and Nokia Win, Google Loses in the Samsung Apple Patent Case?
http://www.forbes.com/sites/timworstall/2012/08/26/links-26-aug-microsoft-and-nokia-win-google-loses-in-the-samsung-apple-patent-case/
Tim Worstall, Contributor , 8/26/2012

Move up Move down Apple is About to Reduce Google's Revenues Tim Worstall Contributor Google Makes More From iPhones Than it Does From Android Tim Worstall Contributor Windows Phone Could be Cheaper Than Google's Android Tim Worstall Contributor Google Blasts Past Apple: Android Now 50% of Market Tim Worstall Contributor


The verdict in the Apple Samsung patent case came a little too late on Friday, West Coast time, for the think piece people to really comb through who was likely to benefit from the verdict. Plenty of very good reporting of what had happened but that’s not really the purpose of the press these days. What has happened is one thing: what it means is where the value is added. Now that we’re 36 hours on from the verdict we’re seeing the ruminations on who has really won and lost.
A general feeling is that it might be Microsoft that has really won with the results of this case. Our own Ewan Spence makes the case:
“Apple walks away with a ruling that Samsung copied the iPhone. Samsung will appeal and look to have the decision mitigated as much as possible. And over in the corner, Microsoft and Nokia look at each other, nod their heads, and smile. This was a good court verdict for Windows Phone.
Half of Apple’s win was about hardware design, something that can be changed over time (indeed, largely is already on newer models). Half was on software features and that’s really Google‘s Android. So, the idea is that manufacturers will look more kindly on Microsoft’s Windows Phone as it is entirely clear of such problems. If that’s true then it will be Google which is the ultimate loser:
“The biggest loser in the case might not be Samsung, but Google, the company some analysts say Apple was targeting all along, as the New York Times points out. And Microsoft could end up being a collateral winner from all this. Bill Cox, senior marketing director for the Windows Phone, quipped on Twitter: “Windows Phone is looking gooooood right now.”
Google doesn’t actually charge for Android, but it is still part of its strategy to make money from mobile:
“Samsung’s Galaxy line of phones run on Android, and ISI Group analysts viewed the verdict as a blow to Android as much as Samsung.

If Android lose any ground in the mobile computing market, that would hurt Google, too. That’s because Google relies on Android to drive mobile traffic to its search engine and services to sell more advertising.
Google also charges for certain Google services to be incorporated but as we’ve noted before, Google’s revenue from iOS currently outstrips that from Android for these.

Yet Microsoft does face a problem:
“Some analysts are skeptical that Microsoft can produce a device that the mobile consumer will love.

“Microsoft has been the beneficiary of this whole fight as the other non-Android option,” said Ron Laurie, a Silicon Valley-based specialist in IP and investment banking and co-founder of Inflexion Point Strategy. “But safety (from lawsuits) by itself is not enough. You have to appeal to consumers.”

And so far the market has seen that consumers want phones and tablets that look like Apple’s devices, he added.
If it really is true that people like Android because the look and feel is like Apple’s iOS then producing something like Windows which has an entirely different look and feel might not do the trick.
And maybe Android has already been changed enough to make it safe from attack by Apple?

“Meanwhile, Pure Android, in its Jelly Bean iteration now significantly different in look and feel from TouchWiz, has so far escaped Apple’s iOS comparison wrath. That might make an untampered Android OS more appealing to manufacturers (and make Google more likely to speak out in their defense should Cupertino come calling).
That is, it was Samsung’s specific tweaks to Android to make it more like iOS which infringed Apple’s patents, rather than Android itself?
Of course, it’s always open to people to try and license Apple’s patents. But why should Apple do so?
“And we shouldn’t take for granted that Apple *wants* to license its design patents. It isn’t like they need the money; they are already sitting on $1B in cash. Right now its priority is to grow its platform, not its revenues. And there are no FRAND (Fair, Reasonable, and Non-Discriminatory) requirements for design patents.
Given that Nokia is just about ready to go with models running the new Microsoft Windows, perhaps they’ll be the big marketplace winners?
“When Nokia decided to go with Microsoft instead of Android, many considered the move foolish. With Android now dealt a major legal blow by Apple, the move looks like genius. The company does not have to worry about Apple coming after it with as many patent claims and can clearly show that its products are radically different. With uncertainty over the evolution (or even support) of Samsung products in the marketplace (while the case will surely go to appeal, further wins for Apple could force Samsung to pull its products from the American market), carriers will pay more attention to products that are not running on the Android platform and the biggest player in that market is now Nokia.
Yet it’s entirely possible that not a great deal will actually change. Recall, again, what Apple actually won on. Three patents relating to hardware design and these are not, at least as far as anyone has proven in court as yet, being violated by the new Samsung models. The other three were software patents. And those, well, it’s not all that certain that these are an insuperable barrier. As above, the latest build of Android may or may not violate them. Further, it’s not all that difficult:
“Others said the effect will be limited.
UCLA law professor Douglas Lichtman said the fixes could be as simple as offering software upgrades. For example, one of the decisions in the case was that Samsung infringed Apple’s patent concerning screen icons.
“Icons sitting in perfect rounded squares, for instance, will be replaced by icons sitting in smooth circles,” Lichtman said, “or icons sitting directly on a uniform black background. No big deal.”

It’s all too early to tell of course. And prediction is very difficult, especially about the future. But opinions seem to range from Samsung having to cough up for past misdemeanors and tweaking the hardware design (something they’ve, arguably, already done on newer models) and similarly tweaking the version of Android they use to Android itself being entirely crippled and Microsoft’s Windows being about to take the mobile world by storm. On that last I’m not entirely sure that Nokia will be the big winner though: Samsung itself has a range of phones running Windows……

Apple vs.Samsung Case: Can Design Patents Win

"The potential for huge damages awards is one reason for the new focus. Design patents have a unique remedy: Whereas infringement of a utility patent allows a patentee to recoup only those profits associated with the patented feature—not the entire profit from the sale of the infringed product—infringement of a design patent allows the patentee to recoup the total profit without apportionment.


The provision has largely been a sleeper for 125 years"

Ron




Apple-Samsung Case Shows How Far U.S. Design Patents Have Come

http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202565565740&AppleSamsung_Case_Shows_How_Far_US_Design_Patents_Have_Come
Lisa Shuchman
Corporate Counsel  August 01, 2012



The high-stakes battle between Apple Inc. and Samsung Electronics Ltd. that began this week in federal court highlights a significant change that has taken place in the world of intellectual property law since the 1980s and 1990s: the steep rise in importance of the design patent.



Back in 1988, Apple sued Microsoft Corporation, alleging the company had infringed its copyright on the “look and feel” of the Apple Macintosh’s graphical user interface. That suit, which Apple ultimately lost, was a copyright case in which Apple had to show to the court that Microsoft had actually copied the design and appearance of Apple’s computer. In 1994, the U.S. Court of Appeals for the Ninth Circuit ruled that under copyright law, “Apple cannot get patent-like protection for the idea of a graphical user interface.”



Fast forward to Apple’s current lawsuit against Samsung and the focus is once again on design. But this time, Apple is alleging patent infringement—not copyright. And while some of the case deals with utility patents—those that focus on how something works—much of it revolves around design patents, which center on how something looks. In fact, Judge Lucy Koh, who is presiding in the case, noted in an earlier ruling: “It is the design patents that are at the core of this preliminary injunction motion.”



“With this case, design rights have taken center stage in the world of patent law,” said Christopher Carani, a partner at McAndrews, Held & Malloy.



In the 80s and early 90s, patents weren’t as much of a focus in technology as they are today, according to Ron Epstein, chief executive officer of Epicenter IP Group. “But patents today play a more important role in protecting innovation,” he said.



Design patents in particular are playing a more important role. In 1994, for example, 11,000 design patents were issued in the United States, according to the U.S. Patent and Trademark Office’s database. In 2011, the USPTO issued almost double that number: 21,356.



Big technology companies such as Apple and Samsung have caught on to the importance of design patents. In 2001, for example, Apple was issued 10 design patents and Samsung was issued eight. In 2011, Apple was issue 123 and Samsung was issued 333. And in 2012, projections show that Apple is on track to be issued about 160 design patents, and Samsung (which makes many more products than Apple), about 500.



“Until recently, utility patents received most of the attention,” Carani said. “This case is causing corporations to take a second, hard look at design patent rights—not only to secure them for themselves but also to make sure they are not infringing design patent rights of others.”



The potential for huge damages awards is one reason for the new focus. Design patents have a unique remedy: Whereas infringement of a utility patent allows a patentee to recoup only those profits associated with the patented feature—not the entire profit from the sale of the infringed product—infringement of a design patent allows the patentee to recoup the total profit without apportionment.



“The provision has largely been a sleeper for 125 years,” said Carani, noting that this “no apportionment” language was inserted into the Patent Act in 1887 in response to an 1886 U.S. Supreme Court case regarding infringement of a design patent on a carpet design. “Now it has surfaced in a big way—to the tune of $2 billion.”



Indeed, $2 billion of the $2.5 billion damages award Apple is seeking come from its design patents; the other $500 million is attributable to Apple’s utility patents. “If Apple prevails, it could yield the largest U.S. patent infringement award of all time,” Carani said. The largest amount awarded to date for patent infringement is $1.67 billion, in a 2011 Eastern District of Texas case in which Abbott Laboratories Inc. was found to have infringed patents owned by Centocor Ortho Biotech Inc. (The verdict was later reversed on appeal.)



Samsung can do little about appealing such a large damage award if it loses the case, Carani said, because the design patent damages provision is codified in the statute. If Apple wins, however, Samsung, could benefit in another way. “If Apple prevails, Samsung may be in a position to assert its own huge design patents portfolio,” Carani said.



Until this case, design patents and their potential power rarely had a chance to rise to such prominence, notes Carani. But if Apple wins, he predicts more attention will be paid. “Companies will recognize that design patent rights can have teeth,” he said.

Top Patent Recipients (33% Semiconductor Companies)

Semiconductor companies are a major force in applying, receiving, and prosecuting patents. They have a long history of protecting their market shares through patents (Intel vs AMD in the early 90s) and increasing their revenues with patent royalties ( for many years about 10% of Sandisk revenues is from patent royalties).




Ron






6 out of 15 Top Patents in 2011 were Semiconductor Companies


http://analogsolutionsgaryfowler.blogspot.com/2012/07/6-out-of-15-top-patents-in-2011-were.html?m=1

For the first time in history the U.S. Patent and Trademark Office will open offices outside of the Washington, D.C. area. These new offices will be in areas that have a strong semiconductor presence (Dallas, Denver, and Silicon Valley).
It is exciting to see so many new patents being granted for our growing industry. However, the Patent and Trademark Office does have over 600,000 pending patent applications. It can take up to three years for the patents to be fully processed and approved. In our industry this can pose a definite challenge, as innovative ideas need to be implemented quickly for our ever evolving technology world