Litigants Lob More Lawsuits at Apple

Los Angeles-based EMG Technology, which holds the patents of real estate developer Elliot Gottfurcht, and partners Marlo Longstreet and Grant Gottfurcht, filed a suit in the U.S. District Court in Texas claiming that the iPhone infringes on a patent approved last month by the Patent and Trademark Office.

The patent is for an "apparatus and method of manipulating a region on a wireless device screen for viewing, zooming and scrolling Internet content."

In another lawsuit, iPhone 3G user Peter Keller is seeking US$5 million in restitution from Apple, claiming that the iPhone 3G does not perform as well and as fast as Apple originally advertised, and that the company has therefore breached its warranty.

The suit, which seeks class action status, also charges Apple with violating California's Business and Professions Code. The suit was filed in the Southern District of California.

Nuisance Suits

Based on the initial filings, "it appears as though these might be nuisance suits," Seth H. Ostrow, partner and chair of Dreier's patent department, told MacNewsWorld.

Apple has attracted more than its fair share of such legal suits, Ostrow noted, in large part because of its deep pockets. "People have made a lot of money on patent infringement suits, and the iPhone is a notoriously successful product -- so it is a natural for these types of suits."

That said, it doesn't necessarily mean they don't have merit, he added.

Key Technology

Apple and iPhone devotees will be particularly interested in how these cases unfold.

The patent EMG claims Apple has violated covers screen formatting on handheld devices, a key technology.

"The merits of the EMG suit will [be evident] in due course, and the patent's validity will be tested, as in any patent infringement lawsuit," Raymond Van Dyke, a technology and intellectual property attorney in Washington, D.C., told MacNewsWorld.

There are likely many other patents involving the screen formatting conversion that could predate the patent at issue -- perhaps invalidating it and obviating the lawsuit, he said.

The application for this patent was filed in 2006, "but it's important to understand that this patent is based at least in part on two earlier patents -- the applications for which were filed in 1999 and 2000," said Tim Connors, a partner at Cleveland-based Calfee.

"This is important, because Apple will be trying to invalidate the Gottfurcht patent by showing that it was anticipated by technology that already existed," he told MacNewsWorld.

There could conceivably be some prior art from 2005 or earlier that would be helpful to Apple, but depending on the claims anticipated by the prior art, Apple may need to come up with prior art from as early as 1998, which would presumably be more challenging, Connors said.

It's also significant that this case was filed in the U.S. District Court for the Eastern District of Texas, he continued. "That court has a 'rocket docket' for IP suits, and its juries have a reputation as being hospitable to the claims of patent plaintiffs."

Breach of Promise

As for Keller's litigation, it is reflective of the rise in class actions against manufacturers for failing to deliver on promises or advertising, Van Dyke noted.

"Here, the alleged failure of Apple and others to provide high-speed services and capabilities is at issue. The law of comparative advertising and promotion will be at play," he said, "but I doubt that the class certification -- something required in a class action -- will occur, making the case difficult for an individual plaintiff."