Posts Tagged: "samsung"

Yesterday, the Judge Koh of the United States District Court for the Federal Circuit denied Apple’s request for a permanent injunction in their ongoing patent war over smartphones with Samsung. The denial of the injunction will allow Samsung to continue to sell phones found to infringe Apple’s patents. How can that make sense to anyone? The patentee, who has already won, must establish entitlement to an order to exclude ongoing and future infringement under a four-factor test that balances equities? What good is a patent? Why did the Patent Office even bother reviewing the patent in the first place then? Why do we pretend that there is an exclusive right in the first place? And the most ignorant elements of the anti-patent community have the audacity to refer to a patent as a monopoly? Give me a break!

Why is this fight so important? It could be a crucial decision for both companies, with the winner gaining leverage in the fast-paced and ever-growing billion dollar market. Each side wants to protect their stake, since they risk losing their high position on the mobile leaderboard as so many companies before them have done. Prime examples of companies that were once at the top of the game but are nowhere to be seen are BlackBerry and Nokia. Both of these were once the biggest names in mobile phones and handheld devices, but lost their edge once new technology started coming out.

First, remember that Steve Jobs once referred to the smartphone patent wars as the patent equivalent of global thermonuclear war. But will this be more like the Cold War or the Apocalypse? The only patent war that I can recall that actually approximated a patent version of the Apocalypse was the battle between Polaroid and Kodak. That saw a $909 million verdict in 1990, and ultimately settled for $925 million about a year later, but required total aggregate attorneys fees in the neighborhood of $550 million. The war lasted 15 years and didn’t achieve the $2.5 to $5 billion that once upon a time was believed possible. This was also at a time when these numbers were real money.

Acacia announced that the Company’s Board of Directors has authorized a program for repurchasing shares of the Company’s outstanding common stock. The stock repurchase program will be put into effect immediately. Under the stock repurchase program, the Company is authorized to purchase in the aggregate up to $100 million of its common stock through the period ending May 15, 2013. Meanwhile, HTC settles with Apple and more.

The relative paucity of design patent jurisprudence regarding the legal remedy of damages and the equitable remedy of an accounting for the infringer’s profits, makes clear that while an award of damages for patent infringement may be enhanced under 35 U.S.C. § 284 for willful infringement, and award of profits under 35 U.S.C. § 289, may not be enhanced under Section 284. While this distinction may appear important to one who wishes to obtain an enhancement of the damages award for willful infringement, the jury verdict form in Apple v. Samsung leaves one clueless as to whether the monetary award for infringement of 18 Samsung devices was an award of damages, an award of profits, or some combination of the two.

News analysis and op-ed pieces following the $1 billion jury decision in Apple v. Samsung have been filled with reactive statements critical of the US patent system. Apple’s enforcement of its patents may “literally choke innovation” cried one law professor. A critic of the decision said that cases like this will require competitors to innovators like Apple to be much more mindful of patents and to “try to avoid or secure rights to [patents]” before bringing a product to market. What the critics have not explained is how making it easier for a foreign company like Samsung to steal US-born innovation is in our long-term national interest.

As readers will no doubt be aware, Australia is one of the jurisdictions in which Apple is currently pursuing litigation against its Android-based smartphone and tablet competitors. The claims and counter-claims by Apple and Samsung are the subject of a trial in the Australian Federal Court in Sydney which has now been extended into the first months of 2013. According to reports, as many as 22 Apple patents have been asserted against Samsung, although it is as yet unclear how many of these will actually be pressed at trial. A number of the asserted patents are innovation patents. An ‘innovation patent’, is in many respects unique to Australia. An innovation patent provides a ‘second tier’ right, with a lower barrier to validity than the conventional inventive step test, and a shorter maximum term of protection of just eight years.

J. Posner also brought the value of the patents declared to be essential under standards bodies to bear on the damages question.  Essential patents must be evaluated for absolute value and relative value to the full-declared portfolio.  These values are needed where a non-linear function is proposed for a royalty determination based on infringement of a subset of the declared patents.  The difficulty presented by an assertion of a single essential patent from a much larger portfolio is “that if [the potential licensee] had wanted to license any of the patents in [the standard’s essential portfolio], the license fee would have exceeded the product of the percentage of the portfolio represented by the patent and the value of the entire portfolio.”  Objective data to present a non-linear function was needed, and even where presented, the notion of a FRAND royalty applied to “confine the patentee’s royalty demand to the value conferred by the patent itself as distinct from the additional value – the hold-up value – conferred by the patent’s being designated as standards essential.”

Commenting on the Yahoo! Inc. patent infringement lawsuit filed against Facebook in March of 2012, Mr. Cuban concludes his post by stating: “I hope Yahoo[!] is awarded $50 billion dollars. It is the only way that consumers will realize what is at stake with patent law as is. Then maybe we can get it right and further innovation and competition in this country.” These statements are from a very influential technology entrepreneur, investor and generally-recognized American business guru. Thus, it would seem that the continuous negative headlines from the smart phone patent wars are definitely giving patents a bad rap!

The final decision in the ITC case brought by Kodak is expected by May 23, 2011, after deliberation of the full ITC Commission. As we wait for the full ITC Commission decision we are left to wonder. The patent at issue relates to a technology invented by Kodak for previewing images on a digital camera-enabled device and the claims of this particular Kodak patent were recently confirmed as valid by the U.S. Patent and Trademark Office (USPTO). So it would seem that the ITC may be poised to issue a ruling contrary to the determination of the Patent Office during reexamination proceedings.

In this edition of News, Notes & Announcements, the mother of all patent trolls, Acacia Research Corporation, scores two more licensing agreements, one with IBM the other with US Cellular. Samsung Electronics and Stanford Law School are combining forced to co-sponsor a patent prize for excellent writing about patent law, with real money awarded to the winner and runners-up; $10,000 and $5,000 respectively. AIPLA announced that David Kappos will give the keynote speech at the annual meeting on Thursday, October 21, and Judge Gajarsa will speak on Friday and Chief Judge Rader will participate in a panel on the amicus process. The Wall Street Journal is reporting about new challenges to cookies tracking our every move online, and BIO is the charter sponsor of a new weekly public affairs television program called BioCentury This Week, which premiered yesterday and is available on the web.

These so-called false marking cases arise from 35 USC § 292, and were given new life thanks to a Federal Circuit decision from December of 2009 — The Forest Group Inc. v. Bon Tool Co. — which quite correctly and quite literally interpreted § 292. As a result, large companies are getting sued every week, and recently Americans for Fair Patent Use sued Apple, Sprint, Verizon and Samsung in the United States District Court for the Eastern District of Texas alleging that the companies are selling products that have expired patent numbers on them, making them the latest high profile targets of this new false marking patent troll. See AFPU v. Appel complaint. One source estimates that if successful the lawsuit could cost Apple alone a total of $60 billion.