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Old 08-29-2012, 01:21 PM   #1
Rob Williams
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Default Patently Backwards

With the billion-dollar judgment day at hand, Brett finally pulls his editorial pen out in an examination of juries, educated decisions, and a rebuke of patent law's current direction and its chilling effect on future innovation.

Read through Brett's look at what's wrong with our patent systems and then discuss it here!
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Old 08-29-2012, 03:46 PM   #2
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Brett's diatribe will require more study than what I have given it as yet. I will read again later.

It had me wondering which way it might conclude until the very end. There are hints but it wasn't really clear until the very end that he feels that this is ruling is harmful for innovation.

My own experience as a result of working directly with Apple is that they have hired MIT design engineers. I forget the exact name of the degree. I was going to call them human factors engineers, but they are more than that. They have studied electrical & mechanical engineering, but in a 4 year program how much of any of that can be crammed in?

On the other hand, even tho I would not expect them to know which end of an adjustable wrench is the business end, they have the advantage of benefiting about what is a good form & feel for human interface. In my software developing, just figuring out an intuitive menu system takes most of the time.

Patents are the world's worst reading problems. Add to that the variety of personalities writing the descriptions, their background, their native tongues, their understanding of the language of the patent not to mention understanding of the invention. I used to sit with a former manager, once upon a time far far away, and read thru competitive patents just to find holes that would allow another patent to be filed that tied up the competitor's! It really was not all that hard to do. Fortunately since those days, the patent system ceased awarding a patent for something that has not been built, cannot be built, or are just figments of imagination.

For those who are directly involved with patentable methods/devices there are choices.
1) get a patent ... not cheap & reveals to the world your idea in detail. Reference the above paragraph about finding holes in patents.

2) if there is already a patent for the invention, ignore it. Take the gamble that it will not be worth it to pursue by the patent holder. If prior art does not exist, then it is a real gamble. If prior does exist, then if the patent holder complains you can make them pay for your evidence of the prior art.

If prior art can be proven, and the patent holder concedes, they no longer can pursue you. The patent still stands tho ... it still takes money to get it revoked. BUT that is to your advantage as the "other" competition does not know that they too could get away with violating the patent.

3) if there is already a patent for the invention, fight it. Expensive. Can get the patent revoked if prior art can be proven to exist. But then all of the competition knows and benefits even tho they did not suffer any expense.

4) acknowledge the patent, go for licensing and pay the fee. Common.

Doesn't devising a method or invention that avoids an existing patent encourage innovation and creativity? And, building on someone else's (patented) invention also encourage innovation and creativity?

I think both Apple & Samsung are quite skilled at these choices and is apart of competitive business. I am also sure that both companies had priced the gamble into their products ... even tho future products will likely cost more with the patent fight as the excuse! This is not a new trend. I read recently about the farm patent battles that occurred at the end of the 19th century. There have been other relatively epic battles before that.
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Old 08-29-2012, 04:05 PM   #3
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I think you pose some interesting points, Psi. And thank you for the statement of not knowing which way I'd take it, I was actually really trying to walk that line right up til the end. :-) Mostly because there are many problems here, I want readers to identify which ones they see before I introduce what I see as the largest problem.

The issue with this particular battle and the concept of patent wars in general is, to me, that they are waged as calculated skirmishes and surreptitious posturing. It very much IS a part of their business model, as I feel like I noted. But now Samsung has been asked to pay $1bn for things like rounded icons and a black phone backing - it doesn't take much prior art to illustrate those things existed long before Apple patented them, but the jury didn't have to really understand that concept.

I don't have much argument with the award, and I feel Samsung actually did copy the hell out of some things. The issue we have is in how that conclusion was reached and on what merits - the jury got there with COMPLETELY faulty logic that illustrated an entire lack of understanding of the rules in play. Just because the monkeys actually pounded out Shakespeare doesn't mean they understood a word of it.

The system, as a whole, is now broken. Patent trolling is truly becoming a business unto itself and though the battle today is between two mega-companies that have this built into their business model already, one need only look at copyright law to see where that inevitably leads. And the very system that is put in place to make sure abuse of patents does not happen requires nine people who know nothing about business or patents to rule on them...patents that are specifically written by people intricately familiar with them to apply outside of their scope.
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Old 08-30-2012, 10:27 AM   #4
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Apple's win will HELP further innovation, not lessen it.

Having Samsung, Google, etc., spending three months to copy what another company spent years and millions of dollars to create is absurd, as is attacking the jury which was especially picked to be non-partial, well educated and more than well suited for for the job and duty at hand, as noted here. Again, as for innovation, thanks to this case it should accelerate, not decelerate as noted below:

http://www.infoworld.com/d/mobile-te...android-200981

http://blogs.computerworld.com/table...good-consumers

http://www.bloomberg.com/news/2012-0...artphones.html

No doubt about it, as always, you'll name call me, and make fun of anything I say as being non-nonsensical, and just as much so as someone telling me they couldn't post any news on the patent-trial-of-the-century because they didn't have the time, and, no doubt, because, at the same time, they where much too busy posting about more important news, like water-proofed peripherals!
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Old 08-30-2012, 12:25 PM   #5
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Quote:
Originally Posted by MacMan View Post
Apple's win will HELP further innovation, not lessen it.

Having Samsung, Google, etc., spending three months to copy what another company spent years and millions of dollars to create is absurd, as is attacking the jury which was especially picked to be non-partial, well educated and more than well suited for for the job and duty at hand, as noted here. Again, as for innovation, thanks to this case it should accelerate, not decelerate as noted below:

http://www.infoworld.com/d/mobile-te...android-200981

http://blogs.computerworld.com/table...good-consumers

http://www.bloomberg.com/news/2012-0...artphones.html

No doubt about it, as always, you'll name call me, and make fun of anything I say as being non-nonsensical, and just as much so as someone telling me they couldn't post any news on the patent-trial-of-the-century because they didn't have the time, and, no doubt, because, at the same time, they where much too busy posting about more important news, like water-proofed peripherals!
Well suited jury? Yeah if you want to build a jury rigged to fail. Most were older, only 2 owned smartphones and only one was familiar with the patent process.

That jury was an example of what's wrong with this country. We have people that largely have no clue about technology making decisions about it. Look at congress, they're constantly working on ways to control the internet yet they don't understand it.

Having control over something doesn't equate to having wisdom concerning the thing you control. Why are people that need help setting a DVR schedule in charge of making decisions about technology?

And face it, if the jury had found in Samsung's favor you'd be here saying it was a travesty of justice that such inept people were allowed to render a verdict on something they were ill equipped to.

Besides, it's not over. Samsung will appeal the decision just like Apple would have had they lost. That's how these things always go.
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Old 08-30-2012, 01:34 PM   #6
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Quote:
Originally Posted by MacMan View Post
Apple's win will HELP further innovation, not lessen it.

Having Samsung, Google, etc., spending three months to copy what another company spent years and millions of dollars to create is absurd, as is attacking the jury which was especially picked to be non-partial, well educated and more than well suited for for the job and duty at hand, as noted here. Again, as for innovation, thanks to this case it should accelerate, not decelerate as noted below:

http://www.infoworld.com/d/mobile-te...android-200981

http://blogs.computerworld.com/table...good-consumers

http://www.bloomberg.com/news/2012-0...artphones.html

No doubt about it, as always, you'll name call me, and make fun of anything I say as being non-nonsensical, and just as much so as someone telling me they couldn't post any news on the patent-trial-of-the-century because they didn't have the time, and, no doubt, because, at the same time, they where much too busy posting about more important news, like water-proofed peripherals!
Rob was not posting news on the Apple/Samsung trial because I had exclusively asked to cover it with an op-ed. Regurgitating the basic news regarding that Apple won isn't particularly necessary in a case this large - and if you have a problem with that editorial decision, you can target myself and not Rob - and as you know, I'm hardly an Apple hater.

The issue in my op-ed is not that Samsung stole or that Apple won. It's the process of the jury and its clear disregard for the rules it DID understand and its ignorance of the rest of them. The jury AND the foreman both acknowledge these facts, so saying a "well educated and more than well suited for the job" jury IS sadly nonsensical. It's also a system that has grown and morphed to try and break its own rules - writing complex patents and having people who aren't trained to read even a basic patent rule on it. And despite ComputerWorld and Bloomberg's view, I do NOT believe that right decisions made by wrong reasoning denote strength in the process. I even say that the fine is in-line, that Samsung DID copy stuff and needed slapped. I'm thankful that the new rules are coming into effect soon...but they still require this first trial before you can sit before the new board.

Please consider who you're arguing against, MacMan. I tend to be the Apple zealot on the team. I'm glad they won - but HOW they won exposes a lot of flaws in a system that are growing larger and larger.

Last edited by Brett Thomas; 08-30-2012 at 01:49 PM.
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Old 08-30-2012, 08:35 PM   #7
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Quote:
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Well suited jury? Yeah if you want to build a jury rigged to fail. Most were older, only 2 owned smartphones...

That's the whole point and the reason the jude picked them, no smartphones, etc., means no bias on their part.

"Besides, it's not over. Samsung will appeal the decision just like Apple would have had they lost. That's how these things always go".
Of course they'll appeal it, but appealing something doesn't mean they'll automatically win. The lawyer below believes otherwise, and Florian Mueller thinks Samsung's appeal looks to be far weaker than the first trial.

http://seekingalpha.com/article/8350...survive-appeal
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Old 08-30-2012, 08:40 PM   #8
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Quote:
Originally Posted by Brett Thomas View Post
Rob was not posting news on the Apple/Samsung trial because I had exclusively asked to cover it with an op-ed. Regurgitating the basic news regarding that Apple won isn't particularly necessary in a case this large - and if you have a problem with that editorial decision, you can target myself and not Rob - and as you know, I'm hardly an Apple hater.

The issue in my op-ed is not that Samsung stole or that Apple won. It's the process of the jury and its clear disregard for the rules it DID understand and its ignorance of the rest of them. The jury AND the foreman both acknowledge these facts, so saying a "well educated and more than well suited for the job" jury IS sadly nonsensical. It's also a system that has grown and morphed to try and break its own rules - writing complex patents and having people who aren't trained to read even a basic patent rule on it. And despite ComputerWorld and Bloomberg's view, I do NOT believe that right decisions made by wrong reasoning denote strength in the process. I even say that the fine is in-line, that Samsung DID copy stuff and needed slapped. I'm thankful that the new rules are coming into effect soon...but they still require this first trial before you can sit before the new board.

Please consider who you're arguing against, MacMan. I tend to be the Apple zealot on the team. I'm glad they won - but HOW they won exposes a lot of flaws in a system that are growing larger and larger.

Thank you for pointing out that you asked Rob for an exclusive on this point; however, he didn't indicate that to me in a recent email, so my apology. And yes, I agree with you about the whole process of patent law, it should be changed as you suggested and even Florian Mueller noted, so thanks for the update, much appreciated. And, oh, by the way, I'm not against anyone here on Techgage or anyone, anywhere else,that apparently is an assumption on your part, and that goes especially for my nephew Rob.
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Old 08-30-2012, 09:39 PM   #9
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Quote:
Originally Posted by MacMan View Post
Thank you for pointing out that you asked Rob for an exclusive on this point; however, he didn't indicate that to me in a recent email, so my apology. And yes, I agree with you about the whole process of patent law, it should be changed as you suggested and even Florian Mueller noted, so thanks for the update, much appreciated. And, oh, by the way, I'm not against anyone here on Techgage or anyone, anywhere else,that apparently is an assumption on your part, and that goes especially for my nephew Rob.
You've accused me before of posting things that make Apple look bad and... this case makes Apple look bad. There's just no pleasing you.
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Old 08-30-2012, 11:07 PM   #10
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Of course they'll appeal it, but appealing something doesn't mean they'll automatically win. The lawyer below believes otherwise, and Florian Mueller thinks Samsung's appeal looks to be far weaker than the first trial.

http://seekingalpha.com/article/8350...survive-appeal
Never said they'd win, I just said no matter how it went and who won it would go to appeal.
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Old 08-31-2012, 12:19 AM   #11
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Apple + Steal = Appeal
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Old 08-31-2012, 01:27 PM   #12
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Good piece, Brett.

I'm of the opinion that using the courts as an extension of the marketplace battleground is an underhanded way of doing business. Using patent laws to protect the integrity of the creators of intellectual property is particularly onerous, in my opinion, since where do you really draw the line on the concept of "originality"?

It's like music, in the sense that there seems to only be a finite amount of source elements from which to draw. Where in music there really only are eight notes to work with, new technology will always draw upon what came before. No matter what branch of the technology tree we're talking about, everything is derived from something else.

Where do you draw the line as far as claiming originality is concerned? To me, this is the trickiest part when it comes to awarding technological patents.

Using the courts to engage in battles over what really are just semantics - which is not the same thing as protecting rights to true intellectual property - is a weapon that only those with really deep pockets can use. That's a revolting concept, to me at least. The haves will thus always have the unfair advantage of having full coffers over the have-nots.

By the way, my comments are not specific to just the Apple vs Samsung case. They apply, for sure, but they are by no means specific to just that case.
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Old 09-04-2012, 10:36 PM   #13
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This is all about market share, growing market share, and keeping market share. And, very possibly, survival. As we all know the news of the past few years, nothing is too big to fail.

As a self employed consultant, I can assure you that going after business can never be half assed. You have to be full bore and f-em to survive. You kiss ass, but you also go after any damn angle that you can think of. When I considered myself as not wanting to compete & just going for the easy stuff, I almost went bankrupt. Figuring out my competition and taking any opportunity that I can think of for an advantage, well ... that has pulled me out of the hole.

And that is just moi. At the multi-billion dollar level, just multiply what I said by a billion or so. It is all about sharks (aka business school 101) and you don't stop biting until there is nothing to chew on.
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Old 09-11-2012, 06:25 PM   #14
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http://arstechnica.com/tech-policy/2...-wake-up-call/


Annnnndd....here's EXACTLY what I was talking about.
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