Patent Warriors Never Sleep
The holiday season has arrived, but that doesn't mean Apple or its opponents in its worldwide intellectual property disputes are taking a breather. Samsung landed a defensive blow recently, ensuring its products won't be banned in the U.S., while the ITC is expected to deliver an important ruling concerning HTC is about a week.
Dec 7, 2011 5:00 AM PT
This year marks the first holiday season in which Apple's iPad has had serious competitors in the tablet market, though it doesn't seem like Apple is up for any surprises before the year ends. Sales appear to be strong heading into the holiday season, even with the Kindle Fire tablet on the scene, though its patent battles, especially with rival Samsung, are as heated as ever.
Even with the availability of the more affordable Kindle Fire, investors notes from J.P. Morgan assert that Apple has few reasons to fret over tablet sales, of which it controls 65 percent of the market going into the holiday season.
Apple was at it again this week with one of its favorite sparring partners, the South Korean manufacturer Samsung. Judge Lucy Koh denied Apple's request for a ban on Samsung products in the U.S, and since the ruling, more information has been forthcoming.
Documents that should have been redacted were leaked to the public and obtained by Reuters. The information was quickly taken back and redacted, and it was revealed that although plenty of information got into the hands of people it shouldn't have, they contained few Earth-shattering revelations. Still, they could reveal a little of Apple's strategy.
"The inadvertently leaked information demonstrates some of the stratagems in the case, and perhaps trial experts' opinions. It is unlikely that this leak will hurt the litigants," Raymond Van Dyke, a technology and patent attorney in Washington, D.C., told MacNewsWorld.
The leaked documents included a portion in which Apple seemed to be offering Samsung tips on how to make an infringement-free product, including suggestions that the South Korean company use front surfaces that are not black or clear and to use display screens with less rounded corners. For a tablet, Apple suggests not using a thin frame around the display screen, or using an overall shape that is not rectangular.
Though that last suggestion raises the question what shape Samsung might have used instead, the advice may have been part of a larger bit of information from Apple that was taken out of context, and not meant to be condescending.
"Apple's pointers, although deemed farcical by some, have merit. Apple itself has repeatedly reinterpreted the designs of computers, PDAs, music devices and phones, creating incredibly sexy products and generating new markets and market shares. Others try to capitalize on that success or be left in the e-dust," said VanDyke.
By offering suggestions, then, Apple could be trying to demonstrate all the other ways that a product could be made, and show that Samsung didn't take those into consideration when creating its tablet.
"Samsung hardly needs Apple's advice to determine how to design products with different appearance. But Samsung can be expected to defend partly on the ground that choosing other designs would create a marketing obstacle because form factors are functional and other shapes would be more expensive to produce, and possibly not be accepted by the public -- such as, for example, the posited non-flat screens. Apple is playing both offense and defense with these statements," said Henry.
Apple is also expected to hear the outcome of a patent dispute with HTC later this week. In March, Apple asked that HTC products be banned from the United States. The ITC ruled in favor of Apple over the Taiwanese maker over two touch patents in July, but a final ruling is expected to be made on Dec. 14, and it could prove less favorable for Apple.
"The subtleties in the interpretation and the extent of Apple's patent rights is the likely reason for the recent denial of preliminary injunction against the Galaxy line. With so much at stake, Judge Koh is likely being extremely cautious," said VanDyke.
Get Out of My Phone!
Apple found itself in unpleasant company last week in regard to Carrier IQ, the makers of a controversial software application that's designed to help carriers measure the performance of their networks. Critics say the software amounts to a rootkit and spyware.
The program, which Apple, Google, Samsung, Sprint, AT&T and HTC have acknowledged can be found in their products, has been criticized for its ability to detect too much information in a user's phone without the user's knowledge -- text messages, numbers dialed, e-mails, URLs visited and search queries. The battle became even more intense last week, when a 17-minute video posted by an Android developer, which detailed the information Carrier IQ had access to, began gaining attention.
Sen. Al Franken (D.-Minn.), along with numerous consumer privacy advocates, have asked that Carrier IQ release the information it has and state how it was used. Several class action lawsuits, some including Apple as a defendant, have been filed.
Apple said it hadn't used the program to collect personal data, and it went one step further this week when it announced the software had been removed from iOS 5 in most of its products. The company reported that the iPhone 4S hasn't been stripped of Carrier IQ, but will be soon. It's unknown if Apple will face the same legal scrutiny as other companies such as Samsung that remain using the program.
Apple did not respond to our request for comment.