I Think Apple found the Smoking Bazooka

Oh snap..!   Google did in fact agree to indemnify Samsung in the original trial against Apple.

A-lonely-gavel

On any given [Sun]day, this might not be a big deal.   However, there are two big problems with this development that had me nearly reeling this morning as I read first the headline and then the article on Apple Insider. Samsung is in a boat load of trouble; and it may be taking Google down with it. BOTH companies may burn on this one.   This is a huge deal for two specific reasons
1.    Samsung KNEW it was Infringing on Apple Patents – Despite anything that it has said over the course of the past few years while the Apple v. Samsung patent trials were under way, based on Samsung’s request for Google to indemnify them (read – foot the bill for the legal fees and direct the path of their legal defense) Samsung ACTIVELY knew that it had been steeling Apple’s intellectual property. If it hadn’t, then it wouldn’t have asked Google to indemnify them.
2.    Samsung Lied…BIG Time – In short (because Apple’s attorney Harold McElhinny really hit this one out of the park, presenting four (4) different exhibits outlining Samsung’s activities to actively hide its request …REQUEST… to Google to indemnify them) – during active testimony in open court, Samsung denied seeking indemnification from any third party (including Google). Here’s where McElhinny hit the grand slam – he presented four examples that clearly shows that Samsung did in fact ACTIVELY pursue indemnification from Google.
That’s not a smoking gun, kids…that’s a smoking bazooka.   There’s not much left of Samsung’s foot.

The final exhibit that McElhinny presented in his examination was,

“…a letter ‘from Allen Lo of Google, Deputy General Counsel Patents and Patent Litigation,’ to Samsung’s JaeHyoung Kim, dated May 21, 2012. The email, titled, ‘Apple litigation alleged patent infringement,’ was described by James Maccoun, [Google’s counsel], as ‘Google’s essentially offering to defend Samsung to the MADA (Mobile Applications Development Agreement) and does offer to defend some — some claims.’ ”

While this may seem a bit “open and shut,” it actually isn’t. There’s a great deal of, “he said, she said” going on with all of this. After the last trial, which Apple won and was ultimately (after reductions and retrials) awarded a judgment of about $890M USD (and not the original $1B+ USD), Samsung outlined what was described as “minor damages” related to two patents it purchased in 2011, after initially being sued by Apple; and doesn’t appear to amount to much.

For example, one patent related to a FaceTime-like video system which could send video over a low bandwidth line, has expired. Apple Insider calls this “start contrast to Apple’s patent offense, which focuses on four feature patents that Samsung meticulously detailed as features it needed in its own products in order to compete against Apple, including Slide to Unlock and Apple Data Detectors.” At this time, Samsung refuses to license the patents on Apple’s terms, hence the latest law suit from Apple seeking $2.0B in damages, royalties and lost profits.   However, that doesn’t clear Apple of anything.   How – and even IF – it’s relevant to these proceedings remains to be seen.

However, being able to produce these four exhibits that clearly contradict Samsung’s earlier testimony, is – in a word – damning. The fact that Samsung knew it had IP issues and then actively sought protection against them from Google in Samsung’s first patent trial against Apple is telling. They knew they were (at least potentially) in trouble.

One big question from all of this is, “how does this effect Google, if at all?”   Will they be drawn into this because of their own desire to indemnify Samsung; or because of the conspiracy to hide the truth from both the Court and from Apple during the last trial? Will they be fined, or be held partially responsible for the damages and judgment that Apple won?   At any rate, that, and if and how this development effects the current trial, remains to be seen.

The biggest question I have after all this is – how will Judge Koh take all of this?   Since Samsung has been caught in a blatant lie, will Judge Koh penalize Samsung in any way?   Will she hold them in Contempt of Court?   She’s shown herself to be intolerant of the shenanigans going on between the two companies in and out of the courtroom. Given that this is pretty “in your face,” I wonder if she will retaliate.   I know many that would want to, at least initially.

At the end of the day, it’s clear that the legal issues between Apple and Samsung – and potentially Google now – are far from over.   If there’s one thing that this particular revelation has shown me, it’s that the trial still has a lot of legs and still has a great many more skeletons buried deep within both company’s respective closets that may yet be revealed.

What do you make of all of this? Did this surprise you as much as it did me? If so, were you more surprised by the actual facts of the situation or by the fact that Samsung got caught in a lie? How do you think it will affect the current trial, if at all?   Will Judge Lucy Koh act on this particular issue, holding Samsung and/ or Google in contempt of court, will she let it slide; or will she penalize one or both of them in a different way?

I’d really like to hear from everyone.   This could create a really cool conversation, with a great deal of speculation and interesting content.   Why don’t you log in and give me your thoughts in the comments section and tell me what you think?   I’d really like hearing your thoughts on all of this.

The roller coaster ride isn’t over yet, but you’re going to have to watch out for pot holes and other bazooka-like remnants as you make your way through it all. This one has the potential to get a bit messier still…

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Apple Still Wins Despite the Retrial

Samsung is decrying the verdict it lost to Apple in the recent Patent Retrial

Barring a huge smoking gun that never appeared, Samsung was all but assured a loss in the recent Apple v. Samsung patent retrial.  Well, that’s at least my opinion. Your mileage may vary.

In total, Samsung had been ordered to pay Apple $1.05B in damages.  However, Judge Lucy Koh reduced that amount by over $400M.  Samsung was still on the hook for approximately $600M.  A retrial was ordered on the damages, with Judge Koh asking Apple to reassess what they felt they were entitled to.  Apple asked for $380M.

They were recently awarded an addition $290M, or just over 76% of their requested amount.  That brings Samsung’s total liability – barring any appeals, which I’m certain you can count on – to $890M.

When asked for a comment on the recent verdict, Apple had the following to say,
“For Apple, this case has always been about more than patents and money,” Apple said in a statement following the verdict. “It has been about innovation and the hard work that goes into inventing products that people love. While it’s impossible to put a price tag on those values, we are grateful to the jury for showing Samsung that copying has a cost.”

Apple v Samsung Devices

Samsung has been trying to get the entire case thrown out of court and had filed two demands for mistrial.  One was for an alleged anti-Asian statement by Apple counsel, Bill Lee.  Mr. Lee is him self, an Asian-American.  So, uh… yeah, no.

Samsung also tried to have the case dismissed via mistrial due to a statement from the USPTO demanding that Apple defend its patent claims against invalidity.

Both requests were denied.

I’ve owned a number of Samsung devices.  There’s no doubt in my mind, based on the visual evidence alone, that Samsung copied Apple designs. It is, in my opinion, blatant.  I mean… just look at the device comparison graphic from the trial of Samsung devices before and after the introduction of the iPhone.  If that’s not blatant copying, I don’t know what is.

However, that’s my opinion. I’d love to hear what you have to say.  Why don’t you join me in the discussion below and give me your opinion.

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Oh snap! Apple ITC Ban Vetoed by the Obama Administration

South Korea to the US regarding the veto – “I find your lack of faith disturbing…”

presidentialseal

The ITC announced that it would ban imports of the iPhone 4 as well as the iPad 2 due to patent infringements that the ITC found Apple had committed.  While Apple insists that it did nothing wrong and that the patents in question were SEP (standard essential patents) needed in order to conduct business, Samsung praised the ban.

Then the only thing that could disrupt Samsung’s brief, mental party happened – The Obama administration vetoed the ITC ban – the first such veto in over 25 years.

The US has the ability to overturn an ITC ban when it feels said ban conflicts with US Policy and is against the public interest.

The ban did a couple things outside of allowing Apple to continue selling the iPhone 4 and iPad 2 in the US. Briefly, it

  • Weakened the ITC
    If the US can so easily, so casually veto the ITC’s decision to ban these products, it may discourage other companies to seek relief via the ITC. Historically, it’s been easier to gain these types of injunctive relief through the ITC, as it didn’t require the burden of proof that other legal avenues did.
  • Caused a $1B Market Cap Loss for Samsung
    The market responded negatively and Samsung lost a great deal of operating capital and value as a result.
  • Strained Relations between the US and South Korea
    The South Korean government issued a statement expressing worries about the ITC ban veto. The Ministry of Trade, Industry & Energy says that the decision could harm Samsung’s patent rights.  The Ministry said it will be paying close attention on Friday, when the ITC is expected to rule on a possible ban of some of Samsung’s Galaxy devices; and that [they hoped] “to see a fair and reasonable decision on the matter.”

It’s clear from the South Korean statement that they aren’t happy with the US government’s decision to back Apple. If it were any other country on any other volatile peninsula, it might strain relations between the two countries. However, South Korea is dependent on US support against an aggressive North Korea, so the rhetoric from the South may just end up being that – rhetoric.

The banned items are likely to be discontinued in a few months as Apple introduces the anticipated iPhone 5S, iPhone 5C (the budget iPhone) and the iPhone 5, sometime this Fall.  As I understood the ban, it was an import, not a sales ban.  So Apple, AT&T and other resellers would have been able to continue to sell what stock they had of each device.

In the end, I’m not certain how effective the ban would have been, had the US not vetoed it. I actually think the veto sent a louder message than the ban would have.

According to the published dissenting opinion by ITC commissioner Dean Pinkert, the ban has a few major flaws. Among them are:

  • The patent in question was only a small part of an international standard.  As such Samsung had agreed to make it available for licensing under terms that are fair, reasonable and nondiscriminatory (FRAND) terms.
  • Samsung had made no effort to demonstrate that the licensing terms it offered to Apple were reasonable
  • That the only time Samsung made such an offer was during an oral discussions in December 2012; and it came with strings attached that Apple simply could not agree to
  • What those strings were have been redacted (blacked out) in the document, but Pinkert adds in the next sentence: “it is neither fair nor non-discriminatory for the holder of the FRAND-encumbered patent to require licenses to non-FRAND-encumbered patents as a condition for licensing its patent.”

It may be that the ban was implemented due to politics. There seems to be some evidence that suggests the commissioners kicked this one upstairs hoping the President would veto it. Now that that’s happened, and issues like these have gotten executive attention, perhaps some serious patent law changes can be implemented.

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iPhone fought the Galaxy and the Samsung Won

As the two heavyweights in the smartphone market go toe-to-toe, trading blows from the courthouse to the high street, the question on most people’s minds is how do we know which is the best?

Unfortunately there is no magic formula for giving a precise conclusion as the devices outweigh each other in different areas. There are, however, some key points on which we can focus to judge the phones against each other.

In terms of design the Samsung Galaxy S3 is slightly bigger in all respects and has gone with a traditional removable battery and plastic casing. The finish does not really do justice to its substantial price tag and in this respect the iPhone 5’s metallic finish with bevelled edge makes for a much better looking device. The debate over which design is better has truly separated the warring factions. Basically, if you prefer a bigger phone the Samsung wins, if you prefer something that looks more sophisticated then the iPhone is a better choice.

When it comes to screen size the Samsung is superior, although the iPhone 5 has upped its game to offer a 4 inch 1,136 x 640 widescreen display, it lags some distance behind the Galaxy with its whopping 4.8 inch 1,280 x 720 Super AMOLED screen. The preference in screen also comes down to a question of taste. The vivid colours produced by the AMOLED are counterbalanced by the natural look produced by the iPhone’s IPS technology. In strong sunlight the IPS resolution produces a much more effective display, whereas in a dark environment the Samsung screen produces stunning results.

The comparison between the software on offer in these devices has also been a major focus for discussion. It has been argued that the Samsung’s Android 4.0 Ice Cream Sandwich offers a wider range of integrated features and a greater level of flexibility than the iPhone’s iOS 6 operating system. The Android system allows you to set up your screen and alter the way the phone responds to basic functions with far more control that you will find on the restrictive system provided by iOS 6. The intuitive performance of the Apple system is still very effective and pleasurable to work with.

Measuring the power is generally a straightforward process and one which usually provides a clear winner. In this respect Samsung’s bigger device seems to have the upper hand and boasts a mightily impressive 1GB RAM, with a 1.4GHz quad-core processor. Perhaps in an effort not to be outdone Apple have not revealed any in-depth tech information on their processor making it impossible to give a definitive answer on which one is the best.

The issue of connectivity offers some clear points of comparison and the Galaxy S3 is head and shoulders ahead on this point. The device has ports for microUSB, microSD, and microSIM connections. It does not require a system sync for file transfer and you can simply drag and drop files onto your computer when plugged in by USB. The iPhone 5 is the first version of the device to move away from the standard Apple 30 pin connector, favouring instead a smaller 8 pin model. That is it as far as connectors are concerned however, and all transfer of files or media is tied in to iTunes.

In conclusion, it would seem that for the first time the untouchable Apple iPhone has been matched and exceeded by a competitor. Of course, there are a number of elements in the competition that do come down to a matter of taste, but in a straight head-to-head scorecard the iPhone has been delivered some serious body blows, and has suffered a points defeat to a bigger, and better opponent.

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