Patent trials are part bombast, part boredom. Lurid accusations of
corporate skulduggery and deceit quickly give way to a mind-numbing slog
through the technical details and vague language of patent claims.
A jury will be asked to sort
through all that to settle a dispute between Apple and Samsung Electronics
beginning Monday in a federal court in San Jose, Calif.
The jury trial is the latest
phase in a global campaign of smartphone patent litigation that began more than
two years ago. The legal clashes mainly pit Apple against rival smartphone
makers whose handsets are powered by Google’s Android software, notably
Samsung, HTC and Motorola Mobility, which Google bought last year. Dozens of
lawsuits and countersuits have been filed in courtrooms around the world.
Yet the escalating patent
battle is more than just legal maneuvering. Patents can be powerful tools for
determining the rules of engagement for major companies in a fast-growing
industry like smartphones.
Patents are declarations of
invention that are often easily obtained from government patent examiners, but
their real value — their validity and strength — is determined in court.
A few significant rulings in
favor of one side or the other, industry and patent experts say, could shape
the competitive landscape in smartphones and a sister industry, tablet
computers. Court decisions, they say, can provide the basis for negotiating the
terms and cost of licensing and cross-licensing of patents — or for keeping
certain patented features exclusive to one company.
“Once you determine who is the genuine innovator, and in what
technologies on the product, you reset the playing field,” said Kevin G.
Rivette, a Silicon Valley patent consultant and former vice president for
intellectual property strategy for I.B.M.
But to bring a real shift in
the marketplace, Mr. Rivette added, one side must have “strong patents, not
incremental ones.”
That issue is much debated,
and litigated, in the smartphone arena.
Apple scored some points in
June. Judge Lucy H. Koh, who will also preside over the jury trial that begins
this week, issued a preliminary injunction against Samsung, ordering it to stop
selling its Galaxy Nexus smartphone in the United States.
Judge Koh found that Samsung
had infringed on an Apple patent for a “universal interface,” which broadly
describes crucial ingredients found in Siri, Apple’s question-answering
application (though the patent itself was filed by Apple before it acquired
Siri in 2010).
But the power of smartphone
patents in general suffered a blow in another federal court in June.
Richard A. Posner, a prominent
federal appeals court judge in Chicago, dismissed a case involving Apple and
Google’s Motorola Mobility subsidiary. In his “pox on both of your houses”
ruling, Judge Posner ridiculed Apple’s broad claims for its user-experience
patents and Motorola’s claim that Apple should pay it a rich royalty on its
basic communications patents. Both companies are appealing that ruling.
Fierce patent battles in new
industries have been the rule for more than a century, from the steam engine to
semiconductors. The lessons of history are decidedly mixed.
Sometimes, patent warriors can
hold off rivals for years, as the Wright brothers did in the airplane business
— though the cost in time, money and innovative energy diverted was daunting
even then. In 1912, Wilbur Wright wrote, “When we think what we might have
accomplished if we had been able to devote this time to experiments, we are
very sad.”
In smartphones, some analysts
say, the sheer number of patents and the speed of innovation in product
development undermine the power of patents. Because a smartphone combines many
communications and computing technologies, as many as 250,000 patents may touch
the device, according to estimates by RPX, a patent licensing company.
“You necessarily litigate individual patents, but there are thousands
of patents behind the ones in court,” said Mark A. Lemley, a patent expert at
the Stanford Law School. “That complexity and the speed of innovation may well
make it easier to invent around the patent system in smartphones.”
Indeed, for its new Galaxy
models, Samsung developed an alternative to one of the Apple-patented features
cited in this week’s trial.
One of Apple’s many patents on
user-experience programming covers its “rubberbanding” or “bounce” feature —
when a user pulls a finger from the top of the touch screen to the bottom, the
digital page bounces. On the new Samsung phone, the same finger stroke brings a
blue glow at the bottom of the screen, not a bounce.
“There is no single killer patent in this lawsuit,” said Florian
Mueller, a patent analyst and blogger. “Apple cannot deal a knockout blow to
Samsung.”
Trial briefs filed last week
lay out the narrative and some of the details that Apple and Samsung plan to
present in court.
Apple asserts that Samsung
made “a deliberate decision to copy” the iPhone and iPad, in both product
design and software that creates the user experience. The unredacted version of
Apple’s filing quotes internal Samsung documents saying that its smartphone
design “looked like it copied the iPhone too much” and that “innovation is
needed.” Another analysis done for Samsung concluded that the icons on its
phone were “too iPhone-like” and were “strongly associated with the iPhone UI,”
or user interface.
In its brief, Samsung contends
Apple is using patents to try to “stifle legitimate competition and limit
consumer choice to maintain its historically exorbitant profits.”
Samsung cites internal Apple
documents and deposition testimony to conclude that Apple borrowed its ideas
from others, especially Sony. Apple, according to Samsung, was clearly
innovative in refining the ideas of others, but it was not the original
inventor.
Samsung, quoting its own
documents, said it had touch-screen phones in development before the iPhone was
introduced in January 2007, pointing to the Samsung F700 model. (The F700 had a
touch screen, but also a pullout keyboard underneath.)
According to Samsung, the
corporate documents Apple quotes in its brief come from “benchmarking” sessions
conducted by Samsung, a standard industry practice.
“Apple,” the Samsung brief observed, citing deposition testimony,
“also assembled an ‘Android war room,’ where its employees can study Android
products.”
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