Apple versus Samsung (Joy of Tech 001)

In spite of the massive coverage concerning the high-profile Apple vs. Samsung trial, it’s easily overlooked that Apple first went thermonuclear on Android by suing HTC. Following the rise of Samsung and subsequent decline of the Taiwanese handset maker, Apple and HTC in November 2012 announced a global settlement on patent litigation.

Terms of the deal have never been made public, but we do know the two sides agreed to a ten-year cross-licensing for all current and future patents and I guesstimated the deal’s value to at least $3 billion.

Yesterday, Judge Lucy Koh issued an order granting Apple’s motion to exclude last year’s Apple-HTC settlement and license agreement at the pending Apple vs. Samsung retrial. The ruling conditionally bars Samsung from pointing the jury to the Apple-HTC settlement deal…

Patent blogger Florian Müeller explains:

I find Koh’s order conditionally granting Apple’s motion to exclude the HTC settlement agreement from the retrial very well-reasoned. It’s also very balanced: while Samsung won’t be able to use the Apple-HTC deal proactively, it will be allowed to bring it up to rebut any claim by Apple that it doesn’t license the utility (technical) patents with respect to which the jury will have to redetermine damages for 13 of the 28 found-infringing products.

The Apple-HTC deal contains an anti-cloning provision which allows Apple to still sue HTC if it builds iPhone and iPad lookalike products.

The truth is simply that Apple is not willing to license its patents broadly, and especially not to major competitors — and if it grants licenses, they come with important restrictions. This is different from patent licensing firms who optimize for licensing income, not for overarching competitiveness considerations.

Müeller opines that Apple can now choose not to claim that it “never ever in any way licenses” its patents or make that claim risking having to explain to the jury “why the HTC deal is not a departure from that principle”.

Here’s the order.

Samsung last year sought to take a peek inside the Apple-HTC settlement in order to invalidate Apple’s argument that it does not license its prized iPhone technology and patents it had successfully asserted against the Galaxy maker.

Samsung’s thinking is that if these patents are part of Apple’s deal with HTC, Apple’s efforts to seek ban on the sale of Samsung products on the grounds of those same patents could be undermined.

Apple responded by allowing Samsung a look into the heavily redacted agreement.

But even though a court had ruled key terms of the 140-page document must remain unsealed, Samsung soon after submitted a redacted copy of the pact into public record, provoking an outrage from the Apple camp.

The Apple vs. Samsung limited damages retrial will commence on Tuesday, November 12,  in San Jose in the Northern District of California.

  • chumawumba

    The bazooka will obviously win

    • Vex

      That’s not a bazooka…

      • Raashid

        It actually isn’t a bazooka; it’s an RPG

      • xxObliteratorxx

        We do not know what variant of rocket it is. RPG was a Russian variant of a handheld explosive projectile launcher.

        Sorry for being so unnecessarily technical and specific.

    • shm224

      @chumawumba:disqus: but he’s got only one shot..

  • Raashid

    Typical patent troll king, the system really needs a big reformation to stop anti-competitors like Apple.

    • Timothy

      Don’t you mean “to stop hypocritical copiers like Samsung”?

      • Raashid

        No I mean “to stop great artists like Apple”…

      • leart

        this isn’t art this is business

    • CollegiateLad

      Your post confuses me. Isn’t a patent troll someone who doesn’t build or produce anything but instead sits on patents with the intent to sue?

      From what I gather, Apple is suing for infringement of patents in its products.

      Since you’re in favor of reform, I’m guessing you want the courts to decide what’s patent worthy and to also invalidate the hard work of Samsung, Apple et al…

      • Raashid

        Precisely, and Apple has a lot (1000s) of those sitting around, including these few (http://wrd cm/195lpZK). From the looks of history:
        – they patent an idea for a long period
        – competitors materialize the idea into new products
        – Apple then decides to materialize the idea
        – They then sue the competitor

        I’m in favor of whatever reform that stops patent trolls and actually rewards the true innovators; it’s all for the greater good. I recall coming across a poster’s reformation idea here on iDB…will post if I come across it.

      • CollegiateLad

        Which patents have Apple sued its competitors over that Apple itself is not currently using?

      • Raashid

        That’s the point; they patent an idea for long periods of time, competitors materialize a product that contains part (or all of the idea), Apple then materializes their own and sues the competitor. Here’s the reformation idea I came across (credit: MrElectrifyer).

        “- Company A has an idea and a functioning prototype- Company A is granted a patent, valid for 1 year (they’re given a deadline to have marketable product)
        – If Company A manages to meet the deadline, patent duration is extended for an additional 4 years
        – If Company A fails to meet the deadline, patent expires
        – If Company B manages to build a functioning product b4 Company A and b4 deadline, they can’t market it without a license from Company A
        – If Company B manages to build a functioning product b4 Company A and after deadline, they can market it without a license from Company A”

      • Qiren_94

        You’re not answering CollegiateLad’s second question…

      • Raashid

        Directly, none that I know of. Doesn’t change the fact that they’re suing for functions they didn’t invent (http://bit ly/1be0Oaq). If anything different, that’s worse than a patent troll…

      • Taf Khan

        When being granted a patent, a reasonable time period for development needs to be agreed with the potential holder. Ideas stuck in the system are not a good thing.

        Is it unreasonable to think two people could think of the same idea/solution without knowledge of the other?

        Such a system could prevent patent trolls. A company who holds many patents without any ever being developed should have its patents holdings reviewed for a re-decision.

      • shm224

        @CollegiateLad: Apple’s design patents asserted against Samsung Galaxy tablets. The design patent doesn’t even resemble Apple’s own product offering, yet sued Samsung for infringement. Of course, Apple’s claims were rejected in Germany (though Apple still got an injunction under Germany’s esoteric unfair-competition law), the UK (where Apple was ordered to apologize publicly) and Apple’s hometown court in SJ.

      • shm224

        @CollegiateLad:disqus : if you want to look at Apple’s patent trolling, you need to look no further than Rockstar’s recent lawsuit against Android makers. Rockstar, as you are aware, is a non-practicing entity that use Nortel patents assigned by Apple, among others, to sue their #1 competitors.

  • Vijay Panjwani

    And Let The War Begin…(grabbed a popcorn)

  • Taf Khan

    Samsung can never be trusted… . Never should Apple or HTC be forced to disclose details of the deal, we all know what happened last time when the judge ordered details of the Nokia and Apple deal to be provided to Samsung lawyers. Tut tut

    • Raashid

      I’m guessing they published it, or was it a lot worse than that? I would have done that if I found something irrational in the agreement and was fighting against Apple in court.

      Having partly read Apple’s greedy mind boggling agreement to use a device I paid for with my cash, I wouldn’t be surprised if they had even more worse mind boggling stuff in their Nokia agreement.

    • shm224

      @Taf Khan: what happened? I thought Grewal decided that Nokia/Apple failed to prove that Samsung violated any protective order. Do you have any evidence to prove otherwise?

      “22. I am certain that I did not tell Mr. Melin at the June 4, 2013 meeting that I received Apple/Nokia licensing terms from my outside counsel in the Apple/Samsung case, because it is not true, and because it would be a very foolish thing to say. I hold a J.D. from an American law school, Santa Clara University, and until I moved to Korea approximately ten years ago I was a member of the California Bar. I am well aware of the importance of protective orders in United States litigation. I have been responsible directly or indirectly for the supervision of hundreds of patent litigations. In most, if not all of them, a protective order is entered. These invariably cover license terms which I know from experience are highly confidential and sensitive information. The confidentiality of this type of license information is as important to Samsung as it is to any other technology company. It would be incredibly reckless for me to have made such a comment to Nokia. It would amount to my admitting to an adversary that our outside counsel and Samsung had violated a protective order protecting the adversary’s information and that I was attempting to use the information gained by such a violation to negotiate license terms. The idea that I would violate a protective order is simply wrong, and the idea that I would tell my adversary that I and my outside counsel had violated it and furthermore were violating it in that very instance by trying to profit from its use is preposterous. [REDACTED]

      23. I may have used the word ‘leak’ at the June 4th, 2013 meeting with Nokia, or some other word to reference the idea that all information gets out, though I don’t recall the precise phrase I used. I do believe that there may have been some sort of leak due to the contemporaneous media reports outlining the terms of the Apple-Nokia license. But I cannot be certain of this. It has in fact been my own experience that information gets out. I know this from my own experience and I recounted to Mr. Melin a situation a few years ago where Samsung had entered into a confidential settlement with another company and very shortly thereafter everyone in the industry seemed to know it.”

      • Taf Khan

        So the company that pays judges in the uk (that would be a uk judge hired as soon as he favoured Samsung against Apple), bribes students to write fake reviews and lies about the performance specs of its devices is to be trusted? The only form of defence they have is Denial? The fact that they acknowledge the papers were posted internally and accessible to staff has been forgotten? Typical SHAMESUNG!

      • shm224

        @taf khan: Sure, the UK judge was one of the four appeal court judges who not only ruled against Apple’s ridiculous patent trolling, but also spanked Apple’s a** for deliberate misrepresentation and contempt. That’s what Apple got for being a wisea**. He was retained by Samsung as an expert witness.

        Apple never cheats, right? Ever heard of Apple’s PowerMac Benchmark cheating:

        “Apple accused of cheating over G5 benchmarks : SPEC vs SPEC”

        But, but, but.. how could that be? Now, why trust Apple’s accusation of Samsung’s violation of a protective order, considering their past lies, cheats, and contempt?

        The burden of proof is on Apple — ever heard of the expression you are innocent until proven guilty?

      • Taf Khan

        Well I guess we will have to watch on, the dust hasn’t settled yet but it’s not looking good for shamsung. At the very least the Law firm representing Shamsung should be banned from the courtroom in patent related cases as clearly they cannot be trusted, making a mockery of the rules that govern the judicial system is not a good thing.

      • shm224

        @taf Khan: Sure, we will find out what happens in crApple’s hometown judges will decide. The magistrate judge Grewal is, however, known for his bias against Samsung. For instance, last year, Grewal was caught blatantly favoring crApple — rejected Samsung motion against crApple’s evidence spoliation charges while accepting crApple’s same charge against Samsung filed a day earlier, claiming that it was past the “tentative” deadline or one day after Apple had filed theirs.

        Both district judges Koh and Grewal are under tremendous nationalist, political pressure, as Obama was, so we won’t see any fair trial until it reaches the federal court of appeals.