Apple-Samsung Patent War Grinds On

The latest court decision in the Apple-Samsung patent war was a resounding defeat for Apple. Whatever you think about the merits of the case, however, Tim Worstall points out that the system isn’t working:

It’s easy enough to forget that the smartphone patent wars are still rumbling along. The actual competitive issues were all settled some years ago, the market has entirely moved on from the issues that were being discussed. However, the court cases over those patents carry on: and that’s exactly what is wrong with the system that we’ve got at present.

..taking 5 years to decide (assuming that there won’t be yet more appeals) in a market with a new generation of devices at least every year simply isn’t timely. Those competitive issues over who gets to sell what based upon copying or innovation have receded way back into the mists of time. None of the products under discussion are still on sale and haven’t been for a couple of years now. Whatever market opportunity either party had, either Apple or Samsung, is dead and gone now. But we’re still trying to decide over who should have that market opportunity? It’s just not working.

Comments

Are the damages really $119.60? That is cute.

If you're referring to the award, that's $119.6 million

Makes sense now.

but aren't court cases always about the past? even commercial ones? why does this demonstrate that the patent system isn't working? how else could you prosecute an infringement? i don't get it.

A good attorney should be able to help their clients order their affairs in such a way as to avoid litigation. I suspect that is not possible in the patent field without significant harm beyond the patent.

Usually it's whining about how much money is "wasted" on IP lawsuits that could instead go into R&D.

But Apple and Samsung are huge companies with huge revenues. The money spent on lawyers is a rounding error, and there will always be some amount of money spent drawing and maintaining the borders between two large empires.

Exactly. This is some of the worst commentary I have heard, Temporary injunctions are for addressing "who should have what market opportunity" and those are decided at the beginning of the case. Determining damages is for past actions.

A strange post by AlexT. First, he seems to be pro-Samsung (as do the Fed. Cir. appeal judges, if you look at the case history outlined in the brief). Next, he seems to bemoan lack of fast courts, which would be a pro-patent argument (patentees want instant judgement on their patents, while patent infringers generally want to drag things out, figuring damages will be less than actual profits made). Finally, he claims 'things aren't working' due to slow courts, yet the parties themselves (Samsung and Apple) are the final arbiters of that. And from Wikipedia it seems they don't care about slow courts (or rather it does not deter them from lawsuits worldwide), see: https://en.wikipedia.org/wiki/Apple_Inc._v._Samsung_Electronics_Co.

PS--it takes about ten years to hear a routine court case in Greece, and, I've heard, for probate in Italy, it takes 20 years on average. We have a simple squatter case in Athens that's on the seventh year (a slam dunk, the defendant figures we might just give up and he'll win that way, which is not uncommon). Even in the USA, I've heard that a former Patent Office commissioner--was it Quigg? OMG, Donald J. Quigg is dead; he died in 2014, the same year he was named by some IP magazine as an IP star (http://www.legacy.com/obituaries/washingtonpost/obituary.aspx?pid=172555643) worked on a so-called "interference" (two pending patents fighting over who is first) for something like 50 years (it was not one lawyer doing the work, but several over several generations). The point being: the parties themselves, not AlexT in his ivory tower, are in the best position to decide as to whether or not to litigate and for how long.

That said, I do think faster courts and a better PTO would unlock a magic kingdom of innovation, that would push the production possibilities frontier out several hundred years (accelerate the future). As it stands now, only 'Good Samaritans' who just 'love to invent for the sake of invention' do the heavy lifting (e.g., most Nobel Prize winners, which is a ex post prize so by definition not an incentive as most scientists don't expect to win it), and business-people and/or 'incremental improvers of the original invention' reap the majority of the profits (not the inventor, and due to the vagaries of cross-licensing it's hard to say whether the original patentee captures much of the revenue from an improvement), as well as free-riders like copycats and people who make stuff off-patent (generic drug companies).

It's one reason nobody in their right mind goes into science to make money. You do science because you love it, not for financial gain. Can we say the same thing about economists? :-)

OT- Quigg had a 69 year career in IP! 2014 - 1945 = 69 years. Amazing. I once saw him from a safe distance, he looked colorful.

Quigg, Donald J., former Assistant Secretary of Commerce and Commissioner of the USPTO (1985–1990); former Deputy Commissioner of Patents and Trademarks (1981–1985); former General Patent Counsel of Phillips Petroleum (1971–1981); associate patent counsel and chief of the legal branch (1954–1971); senior patent attorney, section chief (1950–1954); and staff patent attorney (1945–1950).

The courts essentially took a long time to find the patents invalid

No one should be happy with that, except that small group which finds billable hours in long routes to nowhere.

The overwhelming majority of patents can't hold up to legal scrutiny assuming the law is properly enforced. If you aren't infringing, you want to prove this on day one to lower costs and uncertainty. RIM would still be a real company if this was the case.

The few people who are infringing almost certainly aren't infringing internationally. They are probably infringing in a trivial way and it would help if they could get a day one ruling with little or no actual damages. Then they could then make their button square instead of round and go on to sell a billion non-infringing devices.

If there are people with a legitimate patent with real value, then they should be entitled to block competitors from the first day, and we can decide as consumers if it is worth waiting 20 years or paying monopoly prices.

@Dan Lavatan - Well you should not be talking about "time to go to trial" but "cost of going to trial". To use my Greek court case: we're waiting a decade to go to trial,but the cost is actually very cheap (about $500 so far, 7 years into it, and another $500 at trial should do it). Lawyers outside the USA are cheap. As for making the button square instead of round, this is routinely done today in the USA: if you're on notice that you're infringing, it's common to make a small design change, if possible, to avoid further damages down the road. Even in this case Samsung is saying they no longer sell the alleged infringing products.

That is a very bad outcome isn't it? They avoided "infringing" an invalid patent?

How many companies across the US do that?

RIMS's problem wasn't one bad patent case that cost them $750M.

If this country had stronger patent protection, RIM would be one of the more valuable technology companies right now. The company invented the processes that made push email notification possible, and demonstrated to Apple and Google how to do device security that would stand up to scrutiny. However, they receive very little financially for those innovations.

Due to the size and political strength of certain companies, the only innovations that seem to be worth anything in the court of public opinion relate not to technology but to product design, which is difficult to patent in the software realm.

RIM needed stronger U.S. patent rights to be successful, not weaker ones.

I am going to presume that the vast majority of your readers are onboard for significant patent reform, but that we'll kind of get luck of the draw on actual change. If it isn't an issue in the two party contest, it is an afterthought

As a die-hard Samsung guy, I cannot describe my disappointment in the court's ruling against Apple on 721. Notwithstanding my belief that neither Apple nor any other entity should be permitted to patent things they didn't invent, I'd gladly suspend that principle to have this contemptible feature removed from my Samsung phone.

Given the opponents of big government blah blah wanted this system, I find it odd that the people who wanted it are now so opposed to it.

Maybe Alex is so young he doesn't even know the origins of this as part of the conservatives efforts to boost innovation by eliminating government funding of R&D and instead giving out lots more monopolies for every innovation, all to generate twice the gdp growth of the bad old leftist big government tax and spend era, but I lived through them as a computer engineer called to meetings with lawyer trying to explain patent reform and how we needed to find things for software patents. Also, the calls for engineers who wanted career changes into patent attorney, with the company paying to get a law degree by paying tuition and a living stipend.

Given virtually everything we were doing in software we copied from the real world, I never saw any "invention" possible, but the Republican growth policies were based on government granted monopoly instead of government funded R&D.

The court decision against Blackberry some years ago, where a holder of a patent which basically read something like "Uh, somehow some text will go from one device to another" resulted in hundreds of millions paid out in licensing, basically led me to lose faith in the ability of the American judicial system to be impartial between American and non-American companies in judging patent infringements relating to mobile technologies. Consider that virtually ever American-made smartphone on the market at exactly that time was, um, sending text from one device to anther. The billion or so that Samsung had to pay to Apple seemed to amount to "that curvey bit on the phone is too similar, pay $1 billion" didn't do much to change me opinion on the matter.

Perhaps the situation is improving?

Patent value today has been so watered down that they are generally useless unless you spend a lot of money in DC. Well connected universities (Carnegie Mellon, for example) can get away with huge claims, but the individual inventor who actually put something together has been squished.

The RIM case was bad law, and the law changed quite a bit in response (it is now all but impossible to get an injunction, which was what drove the RIM settlement). But, tech companies have gone a bit too far. We have thrown the baby out with the bath water.

My prediction is that most of the innovation that is funded by VC in the next 5 years will relate to app / software development. Why anyone except for the largest tech companies would waste R&D dollars on hard science research when it is impossible to protect is beyond my comprehension.

Indeed. A belief that someone with deep pockets probably has some vague claim to some patent protection cannot be good for the rate of innovation by the little guys. (If I read you correctly...)

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