Revealed: Apple's plea for fairness in mobile patent war In November Apple wrote to the European Telecommunications Standards Institute suggesting an overhaul of the whole FRAND system of licensing patents fairly and reasonably. The letter was sent to the Director General of ETSI, the premier standards body within Europe, and signed by Apple's VP of intellectual property - it's …
... cannot tell the difference between the leading brand product and your own, the problem is rather deeper than rectangles.
I don't see Apple suing Sony or Toshiba, despite their fondleslabs also being broadly rectangular in shape.
Of what possible relevance is it that someone can't tell the difference between them, at a distance of ten feet, when they're switched off? At that point, they are nothing but black rectangles, and given that a rectangle is not a patentable invention, there is no reason why they *ought* to be distinguishable, so the fact that they aren't proves nothing.
Also, to point out the obvious about your second point: You do not see Apple suing Sony or Toshiba _yet_. If the courts let them get away with this, though, what would stop them doing so? You don't run multiple test cases at once if you're trying to put one over on the court as that way you increase the risk that one of the cases might invalidate your patent, so this is exactly how Apple would be expected to proceed if their true purpose is to abuse the patent system in order to avoid having to compete fairly in the marketplace.
"a. the two tablets were held ten feet away from the lawyer (an appreciable distance) and b. both tablets are, well, tablets and all tablets are basically black rectangles i.e. they do not have novel designs (just like TVs)."
Erm... that was from the article you linked to... the problem being that from 10ft away and turned off, most tablets are just black rectangles... didn't you read it?? :S
There is a concept in business called "trade dress", which can be defined as "that which makes your product look different from your competitor's". An example would be the "seed-pod" shape, red and white color scheme, logo design, etc. of a Coca-Cola bottle. There are an infinite number of ways to make a bottle that does NOT look like a Coke bottle -- color choices in the label and package materials, surface treatments (fluting, bumps), etc. The closer a bottle comes to the appearance of a Coke bottle the better the case that Coca-Cola would have for claiming infringement on their distinctive trade dress. Most companies that choose to compete on the merits of their product will choose a distinctive trade dress for their products. This is why it’s easy to tell the difference between a bottle of Coca-Cola and a bottle of Pepsi Cola from, say, ten feet away. They did that intentionally.
The EU codifies "trade dress", as I understand it, under the term "design patent"; that is, that a specific design -- a product's trade dress -- is patentable, In the U.S. trade dress comes under the copyright laws.
Stated or implied in the "Apple patented a rectangle" claim is that a rectangle with rounded corners of a certain radius and a black bezel of certain proportions, etc., is the ONLY way to design a tablet and so is not eligible for a design patent -- i.e.; can not be a unique trade dress. The implication is that, unlike the Coca-Cola bottle, there is NOT an effectively infinite number of ways to design/decorate a tablet device to differentiate one from another. I think that the fallacy of this is self-evident: OBVIOUSLY different corners/bezel, concave or convex sides, trims/bezels/controls in contrasting colors or textures... the possibilities are endless. Samsung's tablet appeared to have been designed to closely resemble Apple's trade with JUST enough differences to skirt the issue. The German (I think?) courts decided Samsung DIDN'T skirt it, but overstepped the line.
The Coca-Cola bottle was specifically designed to be different and distinguish it from other products. It is not the most obvious and most cost effective way to package the product. A 'slab on the other hand is the most obvious cost effective design, yes even the rounded corners. Sharp corners hurt people and are more susceptable to getting chipped.
The size of the bezel is also mostly down to engineering as you want to maximize the screen, but minimize the overall size, so a minimal bezel is called for. Color is about the only place that is not an engineering decision, and that's going to be hard to prove as all my portable electronic gadgets have been black, or a gray that was obviously intended to be black. Earlier ones were matt, but as material science progressed they have become more likely to be gloss.
If Apple has designed a non-obvious form factor (trade dress) then it would be obvious when somebody is copying them ... as it is with the Coca-Cola bottle. You can't "accidently" make the Coke bottle.
If I was selling shoes and chose to sell them in a plain white shoebox should I qualify for a design patent?
"The Coca-Cola bottle was specifically designed to be different and distinguish it from other products."
And if you look at a history of tablet computing, like this one: http://www.pcworld.com/article/188223/the_long_fail_a_brief_history_of_unsuccessful_tablet_computers.html
...or this one:
http://www.huffingtonpost.com/2010/04/15/history-tablet-pc-photos_n_538806.html#s77827&title=RAND_Tablet_1964
...you will see that Jonathan Ives' minimalist design WAS intended to be different from anything else that had previously been put forth as a tablet computer. Trade dress does not *have* to mean "the most decorated", it just has to be sufficiently *different* from anything that already exists in its market. Ives' design clearly met that criterion. Had Samsung been first to market with its tablet, then *its* trade dress would be the one that competitors would have to work to avoid appearing to imitate.
"If I was selling shoes and chose to sell them in a plain white shoebox should I qualify for a design patent?"
You would presumably have to show how your plain white box >>differed in an immediately obvious way<< from any other white box that had been used for shoes. If its design was distinctive enough -- if its appearance did not too closely resemble "prior art" -- then you possibly could. At that point, all the decision would mean is that no one else could deliver shoes in a box which looked like your distinctively-designed one. Other white boxes, as long as they were clearly designed NOT to look too much like your design, would likely be allowable.
I'm not saying anything about whether your shoebox example, or the Apple/Samsung decision is right or wrong; I'm just explaining the concept and the current law, as I understand them.
There are patents essential to implement a device or build a network which are technical and quite often non-trivial. Some of these require tens of millions of dollars to research. These are the patents which Apple wants to have licensed to them unconditionally.
While I agree with the statement that the FRAND system as it stands is rotten to its very core, the content, timing and specifics of the letter make me doubt Apple's honesty in their intention to fix it.
In fact their behaviour aroung MPEG/LA, HTML5 video, etc show exactly how honest are they here. Nuff said.
...that the rectangle shape (may or may not include rounded corners) is an essential piece of intellectual property and should be licensed, under FRAND, to other manufacturers of electronic devices?
Rectangularity being an essential part of modern touch-screen devices, the license fees should be based on the value of the car.
No, they can still get a court order to make payment based on your infringement.
Blocking sales is the bully-boy aspect, and what would give IP more respect would be a fairer method of agreeing "reasonable compensation" for IP used based on how much it contributes, not on the ability to hold up everything when the troll/holder throws a tantrum.
"...would like the threat of injunction removed from all FRAND patents, so no one could use a FRAND patent to have anyone else's products removed from the shelf."
So, in Apple's case, if you reject licensing a FRAND patent, due to being asked the high-end of the stick of a "fair and reasonable" price, simply because you wanted the El Cheapo end, and go ahead and make the product anyway expecting to just fight it out in courts (if it comes to that, as it's expensive for SMBs), you don't get the right to block said company from selling the device and are simply left with spending millions in court to get your previous "fair and reasonable" royalty they owed you legally anyway?
Basically Apple is realising the old boys club hold all the patents they're relying on to peddle their wares haven't taken kindly to Apple trying to stop sales of their products around the globe.
So the old firms have responded by pulling out their own and Apple realises the fight they started might actually backfire on them.
I for one like watching Apple squirm, and now no one there holds the same fighting spirit and determination of Jobs, shareholders are getting twitchy.
Perhaps the patent issue rumours as to why there isn't an iPhone 5 might actually hold some degree or truth?
All seems perfectly reasonable to me.
If you can't produce a phone without licencing a particular patent then the patent terms need to be reasonable or it stops people even bothering to create anything at all. In the worse case it means people not using standards that are there to make our lives easier.
As a manufacturer of tech that by and large takes existing ideas, and makes them more useful/accessible to the mainstream, this is a pretty transparent "please stop making us pay out for stuff we didn't invent" begging letter IMO.
Fair play for trying, but c'mon, get real!
Are you suggesting that Samsung, Nokia, Ford, BMW, General Electric, whoever you like produce products that each consist mainly of products of their own invention? It usually is "the better mouse trap" that succeeds, not the pointlessly re-invented one. All you are saying is that some firms, e.g. Apple, are better at producing a better, more useable version of existing technology or ideas. That seems to me to be praiseworthy and, in Apple's case with, for example "smartphones" and iPads, has stimulated the market for all the players.
Just how many Android mobiles or tablets were selling before Apple got involved? Nokia had a good stab with its high-end mobiles, as did RIM. But neither really broke the mould and made these into mainstream products, sold by the million around the world, daily.
Apple did.
So the term crackberry wasn't around before the iphone? Oh wait that was named word of the year by Websters dictionary a full 7 months before the iPhone 1 launched. It seems that there were perfectly usable devices before however the iPhone launched, improved on ideas and increased expectations.
I'm pretty sure that RIM "broke the mould" of what came before as did Apple with their iPhones. Just because Apple are very good at some aspects such as design, marketing and UX doesn't mean they get to dictate terms to others who spent decades you know inventing the mobile phone and the market around it.
Both of these platforms were selling high-end expensive phones in pretty considerable numbers. Don't forget, the iPhone came along at the same time that Mobile Data became a viable, affordable option for the mainstream along with suitably powerful processors and displays. These two factors had much more to do with bringing smartphones to the masses than apple ever did.
Joke alert ! The old Windows Mobile was a joke, and Palm, so good that they still sell millions. Oh, wait...
Blackberry made popular phones, but going by results, the iPhone and Android devices are considered far superior by the market. The whole touch screen concept was a significant change from the tiny keyboard and cluttered text based screens of the Blackberry. Like it or not, the iPhone changed the market for mobiles hugely. If you look at projections made only 3 years ago, say, and they said that the mobile market would be dominated by Nokia, and the smart phone market (such as it was) would be all Windows Mobile and Blackberry. Things changed didn't they.
I still power my Palm Treo 650 up and marvel at how much easier it is to do so many of the day-to-day things than any of the smartphones I have had since. Granted it is not as powerful, and is not a 3G device, but it does (with some added apps I admit) 80% of what I do on my current Android. And the battery lasts close on a working week with light use, even after 7 years.
So much so that it is still in my bag, charged, with a PAYG sim in it as my backup phone.
Shame it does not run Angry Birds, though!
"All you are saying is that some firms, e.g. Apple, are better at producing a better, more useable version of existing technology or ideas. That seems to me to be praiseworthy"
I completely agree. Apple are VERY good at repackaging an existing product into a more usable product. I will never take that away from them, they are brilliant at it.
However, IMHO, that is all they are good at. I do not believe they have ever invented anything on their own, and therefore do not believe they have any patents which could not reasonably be covered by prior art (I am happy for people to correct me if I am wrong).
Everything I have seen from them has been done before, and they have improved it and slapped patents on it.
> It usually is "the better mouse trap" that succeeds...
Please provide an example of a market in which this is true. Let's leave Apple aside; I've seen their products (up close), and *I* don't believe they're better than the competition. Clearly some people do, and clearly many others do not.
I can't think of a single consumer market that's driven primarily by product quality. It's certainly not true of, say, automobiles. Or of household appliances. Or of dining out, or clothing, or cookware. It's not even true of niche markets that cater mostly to informed buyers, such as power tools.
It's probably not even true of mousetraps.
More seriously, when a standard is defined and this patent request process is carried out in public and then details are agreed, it should be part of IP law that NO INFRINGEMENT by any other patents should be possible. That way trolls can't come back later (think Rambus) and demand payment for a standard if they did not peak up at the time.
Also the whole IP law should be based on sensible payment by part of the whole, so if your IP is only 1/1000 of the whole system stack you can't block and demand outrageous payments for it. You have to accept a 1/1000 of the profit/margins on the related assembly (e.g. GMS module in the car, not whole car).
Still, in this instance the request by Apply for sensible IP laws and negotiation paths is difficult to accept given the frivolous details they used to get the Galexy banned.
Sadly, given the history of IP laws and dumb lawer-feeding practice (USA in particular) I don't see sense coming any time soon.
Sure they look similar, but both looks like bland rectangular things much like any sci-fi show would have used as a prop. Up closer than have different company logos, and when you turn them on different OS to look at.
Similar perhaps, in fact stupidly so[1] but I can't imagine anyone seeing a Galaxy up close/in-use and thinking it was an Apple iPad.
[1] Samsung has no USB ports or SD slot either, hence no advantage physically over an iPad. Add in to that its poorer 'user feel' and lack of such a well developed app store, and finally price it like an iPad. Just what were the morons at Samsung thinking?
"Similar perhaps, in fact stupidly so[1] but I can't imagine anyone seeing a Galaxy up close/in-use and thinking it was an Apple iPad."
When you deal with the actual users of "stuff", you'll find that all clear sticky tape is Sellotape, all motorised dust suction devices are Hoovers, all sat-navs are Tom-Toms and all tablet computers are iPads, etc etc etc.
Apple have scored BIg Time(tm) in marketing terms.
The situation with the RAMBUS case was that RAMBUS were part of the standards process, proposed using a technology they knew they had patented and chose not to tell the committee. In this situation I would whole hearted agree that as part of signing up to the standard you agree that any non declared patents are to be neither null and voided or to be may available to the standards body in fighting other cases.
But what about the situation where your company has invented a technology and then another group decide to form a standards committee and propose a standard based on your technology, should they be able to rest control from you, when you aren't party to the process?
"should they be able to rest control from you, when you aren't party to the process?"
No, you let them know you hold the patent (they should have done an IP search anyway, and as it is supposedly a public process, you ought to be looking for opportunities to use your IP as well) and so you get your cut.
My suggestion is that once a standard has been discuses, publicly reviewed, and finally adopted, no more patent claims to said standard will be entertained.
Stops an inside job like Rambus, stops trolls from coming back a year or two later when something is in use (think GIF images used of LZW compression here) and demanding huge pay-offs with threat of injunctions.
That's the problem if Apple don't want to accept the % of the product FRAND that they were offered then who gets to decide what % of the 'value' of an iPhone is the phone part.
If it was on components then Apple could simply do a deal with their chip supplier that the GSM module costs 1c, so paying nothing in royalties, and then simply overpay for another part from the same supplier.
That's a common trick for avoiding paying tax, eg. Microsoft Windows includes a large payment to a Microsoft subsidiary in Reno that owns all their IP so that MSFT in Redmond doesn't make a profit and doesn't pay tax.
HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA
*breathe*
So, maybe their idiot lawyer just worked out they fecked up massively and that Samsung actually have them over a barrel with the whole FRAND whinge unless they can change the barrel itself!
Go Saaaamsung! Go Saaaamsung! Go Saaaamsung!
these ARE benign and reasonable. One of the reasons that Apple's profit margins are as high as they are is that certainly in mobile devices, they don't actually invent that much. That which they DO invent (even leaving aside the ridiculous rounded corners and "We invented icons! No, really!" stuff) probably isn't in any real sense essential. By comparison, your Nokias, Motorolas and so forth have spent shedloads over many years on actually developing the stuff which makes a phone, well, a phone. Having arrived late to the patent party and with the IP equivalent of a bottle of two-buck chuck, they now want to dictate how the people who invented the hard stuff charge for it. By contrast, their own paltry stock of IP appears mere litigation fodder, since it's hardly "essential" so presumably they can aggravate people by making up whatever licensing terms they like or refusing to license and then suing people for stuff like rounded corners or daring to have a touchscreen on their device. Frankly, I take one hell of a lot more of a jaundiced view of this than the author.
The problem Apple have is that a "Smartphone" is, well, smarts and a phone, or in other words, a computer and a phone stuck together. Apple has some success in the computer space, but are spotty faced teenagers in the phone area.
Most of the phone companies *cross-license* so don't actually have to pay out any real money under FRAND as they just trade off my imaginary bazillion dollars against your imaginary bazillion dollars. When Apple comes to the phone market they don't have any phone patents to use to play the cross-licence game and hence have to fork out real bazillion dollars to license the patents. The computer patents they have only protect *their* stuff, and are not usefull to other companies, so none of the phone companies want to license them either.
Is Apple finding that no matter how much they bully and stamp their feet they are not going to get their own way. They came late into the industry with no regard for any other company or anybody else's IP and proceeded to try to dictate license terms and patent fees to companies who had been doing mobile for far, far longer followed by throwing the lawyers at them when the companies didn't back down. Now they can see that approach has backfired on them and could end up making a lot of their so called patents invalid while also making them pay licensing fees to other companies who have genuine patents. This is merely stage 3 of their attack where they try and find a sympathetic ear and cry like a baby about how all the others won't play fair, oh woe us what did we ever do to anybody, everybody is picking on us etc
In the Motorola case, if they were wanting to charge them more than other phone makers, then it is Motorola who are being the bullies and throwing their weight around. Problem is, we don't know.
If what apple is requesting comes to light, then not only would we know, but so would have apple before the whole mess got going in the first place.
This is obvious benefit to all except blinded by whatever prejudice (pre justice) they may have
"In the Motorola case, if they were wanting to charge them more than other phone makers, then it is Motorola who are being the bullies and throwing their weight around. Problem is, we don't know."
AIUI but IANAL blah blah, Motorola are happy to licence under FRAND at "normal" rates. But, Motorola are asking for higher rates for the unlicensed use of their IP on Apple devices sold before hand.
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But the only way to address this detail issue APple have rightfully highlighted would to be that all patents be it internal or external are openly allowed to be used by others but they incure a fixed fee per item/usage and not percentage. Also this fixed fee implies to the company holding the patent so if Apple had a patent in products they used and charged others X amount per use of it then they would also have to pay the same, albeit paying internaly. this and all patents must be held buy a holding company that the company and in this example would be Apple. So you would have apple patents 100% owned by Apple and they cross charge the same fee per usage of patent as they charge others. This fee can be externaly audited and deemed fair by the various bodies inplace currently. It would also allow complete transparency and also offer a fair market. I mean people who want to make phones should have as much chance as other companies and this would allow it more than as it stands. It might also clear up all the dupes in the patent world were there worded in such a way that two seperate patents can be viewed for all intence purpose refer to the same process.
So if Apple want fairness in the patent World and I suspect they actualy have many they use which they don't own. This this approach would only go to help address that and level of some of the imbalances currently abound. Though it does turn patents into a sudo tax system, but they are that already, just not as clear as many would like, or indeed need to ever know beyond what you pay at the till.
So, nice one Apple, but follow though and make some positive changes for everybody as well as yourselfs.
Seems the author and many commentards are forgetting Apple now owns several critical LTE patents by way of the billions put into the Nortel purchase.
Maybe the industry should really consider getting on board with FRAND otherwise the current battles will look like children playng when LTE gets going...
I'm pretty sure you're wrong about IPcom not being bound by FRAND
http://www.ipcom-munich.com/IPCom_Frand_Declaration.pdf
In fact part of the problem for handset makers is that their patents are declared essential and so they can't stop implementing them without ceasing to technically implement the standard - and if they do that they lose their rights to FRAND licenses for everything else!
One can't help think that most of their swipey rectangular court cases were to emphasise that everything else was 'not an iPhone'.
One just can't rest on ones laurels when it comes to persuading jou public into parting with 1000 bucks.
With $100 billion in the bank it thus sounds quite a squeal.
Apple bought chips that were patent encumbered, and the chip vendor coughed up to Moto as required. Subsequently, ...
Negotiations for Licensing between Apple and Motorola
Apple’s original iPhone went on sale in June 2007. Apple’s original iPhone contained an Infineon baseband chipset, which incorporated technology covered by patents that Motorola has declared as essential. Apple purchased the Infineon baseband chipset through a manufacturing agreement with Chi Mei Corporation, which manufactured the Infineon baseband chipset under a licensing agreement with Motorola. On August 4, 2007, Motorola gave Chi Mei a 60-day suspension notice on its licensing agreement.
D. Motorola’s Termination of the Qualcomm License
On December 16, 2009, Apple and Qualcomm entered into a contract whereby Apple would purchase chipsets from Qualcomm that were compliant with the CDMA2000 standard. The chipsets incorporated technology that Qualcomm licensed from Motorola. On January 11, 2011, on the day Apple announced the Verizon iPhone 4, Motorola notified Qualcomm of its intent to terminate any and all license covenant rights with respect to Qualcomm’s business with Apple, effective February 10, 2011.
http://articles.law360.s3.amazonaws.com/0249000/249997//mnt/rails_cache/https-ecf-wiwd-uscourts-gov-cgi-bin-show_doc-pl-caseid-29810-de_seq_num-329-dm_id-3602496-doc_num-93.pdf
I think Firewire chips are covered by a very similar arrangement from which Apple profits handsomely. IIRC the choice of a percentage or a fixed fee is specifically related to tiny components where fixed fees would significantly drive up licensing costs. It's an *industry standard" approach.
As for the other points: who gets to decide what component or patent really adds value? If the rules aren't clear from day one the system will break down quickly. That will vary from product to product and over time: GSM patents are becoming less relevant as we move via UMTS to LTE, etc.
The fact that GSM* and its derivatives have become the dominant standards for mobile telecommunications speaks volumes for how well the, admittedly closed-shop, approach has worked. It is designed to have a high cost of entry to stop Johnny-Come-Latelys profiting too easily from some ground-breaking research. At the same time FRAND has also made it impossible for companies to rest on their laurels and hope to make money just from their patents: witness the demise of so many European handset manufacturers as components other than radios have started to make an impact. The rise of Huawei, Samsung, HTC and, of course, Apple all demonstrate the openness of this field.
I suppose we can look forward to Apple's boffins devising and building their own network stack and infrastructure designed exclusively for their devices.
* Yes, I know this is about ETSI but that is also just an *industry* body.
Licensing based on percentage can never be FRAND. What if there are 100 patent holders each wanting 2%? Especially for high end products with many technologies GSM, CDMA, 3G, LTE, Wifi, Bluetooth, GPS, MPEG4, VC-1, WebM, AAC and many more beyond. Plus the fact that in the more complex products each patent contributes a smaller proportion of the total product, the Apple devices suffer from this as they are high end and feature heavy but the car examples illustrate it most clearly.
Requiring patent cross licensing is discriminatory as the cost is higher to patent holders and it would encourage patent sales to sell to non practicing entities (patent trolls) who would not have to licence them.
I'm generally opposed to software patents as so few of the ones I have seen in action strike me as truly novel but even within the current system where commitments to FRAND have been made to standards bodies they should be meaningful and enforced.
Dear Apple.
My Grandma you to say " The DEVIL is a COWARD".
Well LOOK at you. I WISH the ANDROID community would band together. BRAINSTORM every idea they can come up with for now and the forseeable future. And PATENT EVERY ONE. Do we have SHORT memories. Apple already STOLE it's existence from XEROX PARC Coffers. And paid then NO royalties. NONE. APPLE galls me in so many ways with their Corporate Eliteness. THEN THEY WRITE TO A GOVERNING BODY SUCH AS THIS AND ASK FOR FAIR PLAY!!!!!!!!
THEY ASK FOR FAIR PLAY????????? Fair play is rolling back. Admitting GRAND THEFT LARCENY, and paying more than LIP SERVICE to the ONE WHO YOU HARMED MOST. APPLE STOLE XEROX IP. THEN put it on a similar product. SOLD IT AT 1/3 THE PRICE!!!!!!!!!!!!!!!!!!!!!!
NOW the EU LISTENS to these BUMS........... Your'e JOKING right? APPLE started this CRAP. If the Android's got together, bet they could patent APPLE under the concrete. I am PISSED!!
about being paid for something at an agreed price, then coming back and demanding more money?
That's what Xerox tried (they gave Apple the rights to look at the Xerox Star system with the intention of producing commercial derivatives, in exchange for the right to buy pre-IPO shares) and what Motorola seem to be trying (they are revoking FRAND licence agreements with companies that sell chips using licensed paid technologies to Apple).
Double dipping isn't generally well looked upon by the courts.
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