ITC once again slapped down on Apple ruling, this time by Federal Appeals Court

ITC once again slapped down on Apple ruling, this time by Federal Appeals Court

Back in 2012 the ITC (America's International Trade Council) dismissed Apple's claims that Motorola infringed on a couple of iPhone multi-touch patents, and the Federal Court of Appeals has not only overturned that decision, but pretty much pantsed the ITC for the error. Here's what the court had to say, along with Philip Elmer-DeWitt's plain language summation, from Fortune:

"We are troubled by the ITC's obviousness analysis," the appeals court wrote in a stinging repudiation of the ITC's analysis of the case. "We have repeatedly held that evidence relating to all four Graham factors -- including objective evidence of secondary considerations -- must be considered."

Those secondary considerations are the ones that anybody with eyes who has shopped for a mobile phone in the past six years can't miss seeing. Namely that Apple succeeded in building a commercially successful touchscreen smartphone where others had failed, and that once the iPhone proved its worth, competitors around the world rushed into the marketplace with devices that looked an awful lot like Apple's

This follows last week's reversal of another ITC decision by the Obama administration, namely the imminent ban on older iPhones and iPads based solely on Samsung's abuse of FRAND patents.

I'm as bored of patent stories as the next blogger, but an executive and now judicial reversal of the ITC - twice in as many weeks - where the difference between proprietary and standards-essential patents are clearly understood by everyone but the ITC - that's interesting. And as Florian Mueller of FOSS Patents points out, it might only be the beginning:

Should Apple prevail on remand, which is anyting but unlikely (though not a given since the Federal Circuit ruling still gives the ITC some wiggle room in the further proceedings), this could be strategically more important than last year's jury verdict in the Samsung case. Injunctions are more important than damages, and these patents are more fundamental than the ones asserted at the California trial a year ago.

That jury verdict netted Apple over $1 billion in damages. I don't think most of us care about giant companies trading what's, for them, small amounts of money in the who-copied-who smartphone finger pointing game. We do, however, have an innate sense of fairness, and while there's a case to made that all patents are problematic, the abuse of standards-essential patents in particular, is particularly onerous.

Maybe onerous enough to start changing the system?

Source: FOSS Patents via Fortune

Rene Ritchie

Editor-in-Chief of iMore, co-host of Iterate, Debug, ZEN and TECH, MacBreak Weekly. Cook, grappler, photon wrangler. Follow him on Twitter, App.net, Google+.

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There are 17 comments. Add yours.

Dev from tipb says:

As long as we are talking about patent abuse, let us remember:

- Apple has now, on two separate occasions (Nokia and Samsung) used patented technology for years without paying licensing agreements or demonstrating to the ITC or the EU that the other company has been negotiating in bad faith, or even what FRAND obligations are at stake. [ http://essentialpatentblog.com/2013/07/itc-releases-public-version-of-th... ]

- The $1B jury verdict was already cut in almost half [ http://online.wsj.com/article/SB1000142412788732347830457833454054110074... ] as the jury awarded damages seemingly without regard to the technology involved on many devices.

- It looks to be cut much further, if not a new trial granted, as all claims of the '915 patent have been found invalid
[ http://techrights.org/2013/07/30/apple-and-samsung/ ] and the claims of the '381 patent were narrowed separately and without disclosure by Apple to survive a challenge so much so that it is questionable whether any device would be infringing. [ http://www.groklaw.net/article.php?story=20130723123630784 ]

Fairness cuts both ways, and Apple, for all I love their products, has been abusing the legal system more than anybody else in this sphere. It would be nice if paid shills like Florian would actually write an article here and there when the decision does not go his clients' way.

Rene Ritchie says:

Absolutely, though I'm not aware of Apple suing using SEP. If they have, or do, I hope the same things happen.

I'm not sure what'll happen with the Samsung trial, but I have no problem with the original verdict. Samsung basically got Apple to teach them how to make smartphones, then copied them as closely as possible to get to market faster. They're differentiating now, but there's no sane argument against their blatant infringement in the beginning. In that context, even $2 billion is a cheap price to pay for that kind of R&D and marketing kickstart.

SockRolid says:

Should be "no sane argument for".

iDisturbia says:

Rene,

"Samsung basically got Apple to teach them how to make smartphones, then copied them as closely as possible to get to market faster. They're differentiating now, but there's no sane argument against their blatant infringement in the beginning. In that context, even $2 billion is a cheap price to pay for that kind of R&D and marketing kickstart."

+1 again and again!

Oletros says:

"Absolutely, though I'm not aware of Apple suing using SEP. If they have, or do, I hope the same things happen."

I didn't knew that FRAND lawsuits where forbidden.

"I'm not sure what'll happen with the Samsung trial, but I have no problem with the original verdict."

Shocking

"but there's no sane argument against their blatant infringement in the beginning."

Apart of what Judge Koh ruled, isn't?

Dev from tipb says:

Apple did not *sue* using SEP, but they definitely abuse them. What they have engaged in with both Nokia and Samsung is termed a "reverse patent holdup"

[ http://www.thetechstorm.com/2013/07/itc-accuses-apple-of-being-hypocriti... ]

Essentially, it is when a company makes use of a SEP without any intention of licensing it, daring the patent holder to take them to court. The company would have to be shown to not negotiate in good faith on the patent, and, as evidence, the ITC cites this 2010 statement by Apple:

"the Commission were to determine that the ’348 patent is valid, infringed, and enforceable–and it should not for all the reasons the ALJ found and Apple previously briefed–and if that judgment were affirmed on appeal, Apple would stand ready to pay FRAND royalties."

In other words, Apple plainly states they will pay FRAND royalties if their *OWN* non-SEP patent is upheld. You ain't allowed to do this -- it is illegal at worst, and bad faith at best.

Timelessblur says:

I though that the patent office found that patent to be well invalided. So it really is not going to matter as chances are that patent is going to be called what it really is. A crappent and tossed out.

The Appeals Court to me looks like the classic idiot consumer that has no understanding of the fact that multitouch as been around since the 80's.

My guess is the over all ruling going to be guess what Apple your so called patent is a crapent and should never of been granted.

Rene Ritchie says:

Re-read the decision, and Elmer-DeWitt's comment - everyone else had failed to do it successfully.

I'm not a fan of patents in general, but there's nothing "crap" about multi-touch patents. The market before and after iPhone makes that painfully evident.

Timelessblur says:

the problem is the patent Apple is talking about is nothing more than a patent combined of patents before. more so examples from the 80's killed it.

Also the market before and after the iPhone has nothing to do with said patent never should of been granted before hand. All Apple did was market it popular but the fact stands that hte patent should never of been granted to begin with due to a lot of stuff that came before. Top it off there are plenty of examples from even movies that can be taken from before hand which is why that patent is a crapent.
Apple seems to be just file for crapents and see what sticks. A lot of their patents that they are suing with should never of been granted in the first place. Apple has become the worlds largest patent troll.

bulldogbobby says:

You sir should read what the Appeals stated. The ITC should have considered the 4 Graham factors prior to making a ruling. By the way, use of such terms like crapent and the like are just plain childish.

Timelessblur says:

I call patents that should never of been granted crapents.
patent trolls are loaded with them. it is one thing having a bunch of crapents. I know Google, MS, Apple are all loaded with them. it is another to go sue happy with your crapents. A patent troll to me is anyone who goes sue happy with crapents.

plaztiksoundz says:

Actually no, a patent troll is a company that buys VALID patents from other companies. What makes it a patent TROLL is the manner those patents are used, not for the use of the company, but to make money in royalties. If you don't want to license them, they sue. Just because the patents aren't used in the way they should be used, it doesn't make them "crapents" like you so childishly like to call them.

plaztiksoundz says:

Movies are just that, movies! Fiction...not reality! Just because phasers, light sabres and warp drives, are in "movies" since the seventies it doesn't mean the technology to produce them exists. If it were to be invented or adapted from other techs now, just because someone "imagined" it years before it doesn't mean it shouldn't be patented. That's not how it works.

But then again, your arguments are "...due to a lot of stuff that came before", so it's pretty clear you don't know what you're talking about.

Timelessblur says:

The problem is the gesture. You can not patent something that is logical and intuitive like pinch to zoom, slide to unlock both of which had products out on the market long before Apple even applied for it patent.
Also if you dig into them you will see a lot of prior art examples from yes the 80's in the field of multitouch. Apple took a lot of patents from the past and tried to throw them into another other. Those patents should NEVER of been granted.

The movie references show that things like pinch to zoom gesture should never of been granted. Now if you have some fancy way of doing reading it that is one thing but the gesture on what Apple tried to patent should never of been granted. The movie references just shows that is the natural way of doing things. The gesture is the equivalent of me patenting breathing.

iDisturbia says:

"That jury verdict netted Apple over $1 billion in damages. I don't think most of us care about giant companies trading what's, for them, small amounts of money in the who-copied-who smartphone finger pointing game. We do, however, have an innate sense of fairness, and while there's a case to made that all patents are problematic, the abuse of standards-essential patents in particular, is particularly onerous."

Well said!

Carioca32 says:

So, how does that ressonates with the July 30th Politico article? Might it be that Apple only wins when it really has merit?

http://www.imore.com/why-apple-not-paying-washington-might-be-costing-th...

Adem Reka says:

Someone is going to cry someday with this tragic editorials