Apple vs Samsung let the fun begin.

WildCat said:
Bang-up job they did, now new entrants are locked out of an entire industry and patent trolls lurk under every bridge. Innovation has given way to lawsuits, and the consumer is left with the bill.
Click to expand...

So in your world, no new phones or other consumer electronics are coming about? Only a handful of major companies make smart phones, and everyone complains constantly about how the smart phones are just the same as they were a decade ago?

In your world, patent litigation is an entirely new part of doing business in a high-tech industry, having no significant place in the law, the courts, or the industrial world until recently?

What color is the sky in your world?
 
AvalonXQ said:
So in your world, no new phones or other consumer electronics are coming about? Only a handful of major companies make smart phones, and everyone complains constantly about how the smart phones are just the same as they were a decade ago?

In your world, patent litigation is an entirely new part of doing business in a high-tech industry, having no significant place in the law, the courts, or the industrial world until recently?

What color is the sky in your world?
Click to expand...
Were new uses for existing machines patentable before all these learned experts put their heads together 30 years ago?

We have a handful of smartphone makers, and all the cross-licensing makes them a cartel in many respects. And even that low number may be reduced further, Motorola was just sold in a fire sale and Nokia is slipping badly. Apple is trying to sue its way to a monopoly. It takes a behemoth like Google to enter the market these days, because only one of the biggest companies in the world can fight the endless lawsuits over patents that never should have been granted in the first place. Same for the tablet market.

This isn't an industry with inherently ginormous entry costs, like making automobiles. There should be dozens of smart phone manufacturers, but there aren't and there won't be because any new market entrants will soon be crushed under the weight of lawsuits.
 
WildCat said:
Were new uses for existing machines patentable before all these learned experts put their heads together 30 years ago?
Click to expand...



Actually, yes, they were.


http://dewipat.com/journal/new-use-of-old-device

Every now and then, people will discover a new use for an old or known device and wonder if they have invented something that could be patented. The notes below might help.

—Mere application of an old device to a new use does not constitute an invention. Exer-Genie, Inc. v. MacDonald, 453 F.2d 133 (9th Cir. 1972).

—Adaptation of an old device to a new use may constitute invention especially where the device is transferred from one art to another. But where such adaptation—with or without such transfer—is the product of mere mechanical skill, it does not constitute invention. Id, 453 F.2d at 133.

—The grant of a patent on a machine cannot be predicated on a new use of the machine. In re Schreiber, 128 F.3d 1477 (Fed. Cir. 1997).

—The discovery of a new use of a known device does not render the device patentable per se. The reason, however, is not "inherency"; it is that the device is already known to the public, and cannot be removed from the public. The new use can of course be claimed as a method of use. Id., 128 F.3d at 1481.

Thus, an adapted old device may be patentable if the adaptation involves more than mere mechanical skill. If the new use of the old device does not require significant adaption of the old device, then the new use may be claimed as a method of use. However, there would still be the hurdle of showing that the method of use is not obvious.
Click to expand...


http://www.nolo.com/legal-encyclopedia/improvement-patents-new-use-patents-30250.html

New Uses for Existing Inventions

You can also get an improvement patent for an innovation that provides a new use for an existing invention. For example, in 2000, the Federal Circuit allowed a patent for the idea of using Bag Balm -- an ointment normally used to soothe irritated cow udders -- to treat human baldness. The court found it patentable, because it's a new use of a known composition.
Click to expand...


http://lahserpatent.com/patent-new-use-of-old-idea/

Maybe yes, maybe not. The discovery of a new way to use an existing product or old idea might be patentable, for example, if the new use is based on unknown properties of the existing product. Patent attorneys call this a “process patent” or a “method of using”.

If the patent claim only includes the old structure or composition, and, the “use” is simply a result of that old structure or composition, then the claim will not be allowed. However, if the “use” of the old structure or compound has an unexpected result, then, the patent claim can be granted. Also, the new property like must not be “inherent” to the existing product or old idea.
Click to expand...


http://www.expertlaw.com/forums/showthread.php?t=83402

A frequently asked question is: "Can I patent a new use for an already existing product or tool?" Potentially yes, but care is in order. New uses for old things must be carefully phrased as "process" or "new use" claims.

For an example of the pitfalls, consider a discovery that could have made the discoverers immensely wealthy. In 1846, Drs. Morton and Jackson received U.S. Pat. No. 4848 covering the use of ether as a surgical anesthetic. Prior to that time, ether was well known as a compound, but its anesthetic properties were undiscovered. That patent was eventually held invalid, some 16 years later, because the inventors had claimed ether per se, rather than as part of a method of using it in anesthesia. It's an old patent, but available at www.uspto.gov, and is an instruction in the subtle art of claiming. Morton and Jackson's language claiming the "means by which we were able to effect [anesthesia]" was held to claim the substance, ether, and not the process, by a New York federal court, even though the title of the invention is "Improvement in Surgical Operations;" language that certainly suggests a process or use.

Today, under 35 U.S.C. § 100(b), process claims are specifically defined to include "a new use of a known process, machine, manufacture, composition of matter, or material." However, caution is indicated. Inclusion in a claim of a simple intended use is insufficient to make out a method or process claim, for example, merely claiming "The use of…" has been rejected. The use must be recited as a true process, that is, one encompassing one or more specified steps. Also, finding a new use does not entitle one to any apparatus claim or substance claim on the material or machine - only the new process may be patented.
While we most often think of new processes to use old materials, can there be a new use or a new application of a previously patented process? The law is not entirely clear on this, but authorities believe that a new use, if claimed properly as a use, is patentable if it satisfies the nonobviousness standard of 35 U.S.C. §103. As is true in other obviousness determinations, a new use for a known process that would be obvious to one skilled in the art would not be patentable.
Click to expand...
 
OCaptain said:
So, copying Apple = innovation.

Got it!
Click to expand...

Because he's equating Apple's lawsuits over trademarks, patents, copyrights, etc, to stifling innovation, when it is in large part protecting their ip.

He first concedes that Apple has some solid arguments, but then says he hopes they lose in court, ostensibly because he thinks Samsung should be able to continue doing whatever they like.

There's a larger context we're forgetting here. Both Samsung and LG are South Korean companies, and laws regarding ip are very permissive contrasted to the US. You see a lot of slavish copying between the two from each other. Their mindsets about what makes acceptable competition are VERY different from American companies. This mindset certainly informs their decisions that got them in trouble in this case.
 
Last edited:
OCaptain said:
Because he's equating Apple's lawsuits over trademarks, patents, copyrights, etc, to stifling innovation, when it is in large part protecting their ip.
Click to expand...

You mean the IP they gathered by simply copying other peoples stuff? After all Steve jobs himself said publicly that they are copying whatever they think is useful.

That whole "IP" thing has been perverted beyond recognition when it comes to IT related stuff. One has to wonder how it is even possible that the whole IT industry was able to grow that fast and flourish during times where we did not have those stupid, overreaching "IP laws" and patents that we have today. And how it is possible that once such laws and patents were put in place, we see more and more small companies get sued into oblivion, patent trolls are growing, and innovation is stiffled more and more.

The current system is not even a bad joke, it is a threat to the whole industry. Technology that is regarded a standard, that is, stuff that you _must_ implement to make it work (GSM, 3G, 4G, etc. just to name a very few) is burdened with patents. If you want to make a phone, you have to implement these.

A _standard_ being "protected" by patents? That's just stupid. As are all the software patents we currently have. It's time to get rid of them.

Hey, here's a simple idea to help with that problem in the short term. Whoever brings forward a patent lawsuit has to pay the defendants cost in proportion to whatever they (the plaintiff) lost, determined by the number of claims involved. Like, 5 claims = 100 / 5 = 20%.

For example, they bring forward 5 claims of a software patent that is allegedly infringed. For every claim knocked down they would have to pay, in this case, 20% of the defendants legal costs. Plus 20% of whatever damages they claimed to have incurred initially. As soon as any claim is found to be invalid due to prior art, that amount should be tripled, because obviously they themselves did not do the research that they demand others should do.

In case the whole patent is struck down during re-examination they would have to pay the defendant double the amount they claimed as damages, plus all the legal fees, plus the defendants PR campaign to announce that they were wronged. In case it is struck down due to prior art, that amount should be tripled again. In addition, the patent office should pay 50% of the claimed damages as well, just to give them an incentive to think twice before rubber-stamping nonsense-patents.

And they would have to pay that _immediately_ after the lawsuit. In case they can regain some ground in an appeal, then they would get it back, but only then.

Greetings,

Chris

ETA: Oh, and lets extend that to crappy IT related copyright lawsuits as well. You know, like what SCO did. Or the laughable "sequence, structure and organization" wrt. to the Java API's.
 
Last edited:
OCaptain said:
Because he's equating Apple's lawsuits over trademarks, patents, copyrights, etc, to stifling innovation, when it is in large part protecting their ip.

He first concedes that Apple has some solid arguments, but then says he hopes they lose in court, ostensibly because he thinks Samsung should be able to continue doing whatever they like.

...snip...
Click to expand...

Er not really, I'm all for protection of IP (a lot of my income over the years has been because such protection exists!) but I disagree how Apple* is trying to use the current way certain IP can be protected in the current trial (and others throughout the world) because I do believe that it does stifle innovation and so on. I would be fine to see Samsung slapped down and face heavy penalties if it can be shown they for instance copied the icons of iOS to such an extent that it did confuse the products in a customer's mind.
OCaptain said:
There's a larger context we're forgetting here. Both Samsung and LG are South Korean companies, and laws regarding ip are very permissive contrasted to the US. You see a lot of slavish copying between the two from each other. Their mindsets about what makes acceptable competition are VERY different from American companies. This mindset certainly informs their decisions that got them in trouble in this case.
Click to expand...

Absolute load of drivel.


*(ETA: My criticism isn't limited to Apple, they are far from the only company acting in such a way but this thread is about Apple and Samsung so want to keep to that for this thread.)
 
Last edited:
Darat said:
I would be fine to see Samsung slapped down and face heavy penalties if it can be shown they for instance copied the icons of iOS to such an extent that it did confuse the products in a customer's mind.
Click to expand...

I have to disagree with that to some extent. No idea about the fine details of copyright laws in other countries, but here in Germany there is the issue of "Schöpfungshöhe". That means a certain level of quality of the creation has to be achieved to actually have it protected by copyright law.

For example, if you take the standard icons/symbols of green and red phone receivers, which are found on virtually every mobile phone, there is no way you would ever get copyright protection for them. Simply because they are not creative at all, way too simple to come up with, way too common.

Even if you change that into a green/red ractangle or whatever, with the receiver symbol whitened out, you still would not get such protection, because that kind of "modification" is again far too simple.

Then we also have exemptions for things that became "common goods", so to say. For example, a popular brand of paper handkerchiefs here is "Tempo". It is so popular that every one uses the name/word "Tempo" when referring to a paper handkerchief. This makes the name a commonb good to some extend. People can happily write about using "Tempo"'s, they can do whatever they want with that word, the only thing they can not do is directly name a brand of paper handkerchiefs that way. But it lost all other protections. You can use it in a commercial environment to refer to those things, the use of those things, etc., just not name the product itself that way.

There are many other examples of that as well. Imagine the situation that Motorola would have become synonymous with mobile phones. To such an extent that one would say "what motorola do you have" to ask "what mobile phone do you have?". People could advertise there products as "This is our motorola: The new SpookyPhone 3.0", using "motorola" to refer to mobile phones in general. They could not name their product "motorola 3.0" though. Also, they could not do it that way in case that word "motorola" would have not been that widely adopted to refer to mobile phones.

At least over here we have some limitations about what one can claim is copyrigtable, etc., based on common sense. Which is also the reason why you so rarely see any such lawsuits done here. And those that are done here have a good chance to fail.

Greetings,

Chris
 
Darat said:
Er not really, I'm all for protection of IP (a lot of my income over the years has been because such protection exists!) but I disagree how Apple* is trying to use the current way certain IP can be protected in the current trial (and others throughout the world) because I do believe that it does stifle innovation and so on. I would be fine to see Samsung slapped down and face heavy penalties if it can be shown they for instance copied the icons of iOS to such an extent that it did confuse the products in a customer's mind.


Absolute load of drivel.


*(ETA: My criticism isn't limited to Apple, they are far from the only company acting in such a way but this thread is about Apple and Samsung so want to keep to that for this thread.)
Click to expand...
Which part is drivel and why exactly?
 
BenBurch said:
Trying to get the parties to settle is pretty typical in these cases.
Click to expand...

Yep but so far despite many such requests from judges the two parties just cannot agree. Given what we now know about Jobs personal vendetta against "android" that is hardly surprising, that's why I was wondering without his influence whether there is now the chance of such settlements being reached.
 
Interesting developments from yesterday given the stance taken by some folk in this thread: http://www.theverge.com/2012/8/15/3244581/samsung-expert-apple-bounce-back-patent-invalid . Interesting to see the presumably experienced and expert lawyers using arguments that some folk in this thread have claimed were naive when presented by other folk in this thread! Someone needs to get Apple's lawyers to read this thread to get them up to speed! :p
 
Darat said:
Interesting developments from yesterday given the stance taken by some folk in this thread: http://www.theverge.com/2012/8/15/3244581/samsung-expert-apple-bounce-back-patent-invalid . Interesting to see the presumably experienced and expert lawyers using arguments that some folk in this thread have claimed were naive when presented by other folk in this thread! Someone needs to get Apple's lawyers to read this thread to get them up to speed! :p
Click to expand...


Which arguments are you referring to here?


And, BTW, that article is a perfect example of exactly what I've been asking for all along:


an expert witness providing a lengthy look at the Tablecloth application we saw this week. Dr. Andries van Dam, a faculty member at Brown University since 1965, walked the jury through the elements specified in the '381 patent, each of which appeared to be met by the application — and in his opinion, rendering the patent invalid due to prior art.

Tablecloth runs on the DiamondTouch Table computer, and as demonstrated yesterday allows a user to scroll through an image — in the example shown, a pair of desktop images — and then displays a blank white space when the user reaches the end; removing a finger causes the image to snap-back, much like Apple's feature. Tablecloth dates back to 2005, while Apple's bounce-back patent was originally filed in December of 2007.
Click to expand...


So, actual prior art that apparently shows all the elements of the claimed subject matter. Exactly what I've been saying we need to invalidate the patent, or to have refused it in the first place.

It also highlights one of those real problems with the patent system I've been mentioning, and which people have chosen to ignore in favor of attacking strawman versions of these patents:


In fact, van Dam said that the US Patent Office had never seen the two pieces of software before granting Apple its patent. "I examined the prosecution history," he said, "and there is no mention of these two pieces of prior art."
Click to expand...


Prior art searching is one of the hardest parts of an examiner's job, and missing a relevant piece of art such as this is probably the single most common problem you have in the system. Developing tools that allow you to adequately search all the available literature is quite difficult, and made even harder in that not everyone uses the same terms to discuss their ideas. Use the wrong keywords when searching, and you could (and often do) miss relevant citations.

Add to this the fact that examiners don't have an unlimited amount of time to search, and it's inevitable that invalid patents will be issued due to missing relevant prior art. We're always trying to get better, but we'll never be perfect.

This, of course, is why a granted patent only has a presumption of validity - a presumption that can be countered during a court case by presenting evidence that the presumption is flawed, exactly as has been done here.
 
You must log in or register to reply here.

Back
Top Bottom