Wed, Aug 8, 2012 -- 9:00 AM
Apple vs. Samsung: Week 2Download audio (MP3)
We discuss the latest on the high-stakes patent infringement trial between Apple and Samsung.
See show highlights below.
Host: Dave Iverson
- Howard Mintz, legal affairs writer for the San Jose Mercury News and the Bay Area News Group
- Josh Lowensohn, staff writer for CNET News
- Robin Feldman, professor of law at UC Hastings College of the Law and author of the book "Rethinking Patent Law"
Apple vs. Samsung: The Vitals
What's Being Debated?
"Apple is saying that there is no way these products came from anything other than the inspiration and the copying of designs from the iPad and the iPhone. And Samsung's saying, 'You know, this is just the way the industry was going, everybody was doing this to one degree or another. These are our own devices and Apple is just complaining because we're starting to beat them in the marketplace.'"
- Howard Mintz
There are two types of patents at issue here. One is what I would call just "ordinary patents," that's how a product functions, what it does, how the manufacturer gets it to do that. Those are the functional patents. The second set of patents that are called the "design patents," that really what is called its ornamental imagery. Both of those are at issue here as well as two sets of trademark related claims. And they're completely different as far as what the jury has to find for each.
- Robin Feldman
What Does Apple Have to Prove?
"You have to show that the "ordinary observer" would not be able to make any distinctions looking at these products. That will be important both for Apple to prove infringement and later on if they get to the point of proving damages.Showing market confusion and a potential loss to the Apple brand is a big part of their case, and in fact they had two experts on the stand yesterday starting to go into what they consider an erosion of the Apple brand as a result of Samsung's alleged violations."
"Apple has to be able to say 'Not only were we the first to make this product, we were the first to think of it and tell the Patent and Trademark Office about it. And when you are talking of millions of things that are out there, it can be hard to say you are the very first to ever think of rounded corners and a black background."
How Does the Case Affect Consumers?
"Consumers stand to be the biggest losers in here because they can lose on choice of product and they can lose on price.
They lose on price in a couple of ways. One is our most innovative companies are spending massive amounts of resources on these patent battles. So they're using litigation as a competition tool instead of using that money to come up with new products. The consumer always loses. Whatever the companies spend flows through in the price for the consumer.
The consumers also lose in terms of product choices because these battle of the titans are all attempts to say 'I'm going to control this market,' and when you can control that market, if you get control of intellectual property rights, then you can make everyone else change their products, and you can say 'You can't use the thing that consumers really want right now, only I can.' Consumers always lose when they have fewer choices."
"We're watching Apple versus Samsung but Samsung in this case is just a stand-in. Samsung is part of a much larger war that was famously declared by Steve Jobs against Google's Android system and all the companies that make smart phones based on the Android system."
Why Not Simply Go After Google Directly?
"There are two key issues -- one is damages. When you have a product that's being given out for free, even if it's advertising supported, it's hard to generate the kind of damage numbers that you're seeing in [these] cases. So for Apple versus Samsung the damages claimed are $2.5 billion… The way the law allows you to count damages, you just get better counting if you go after the phone makers than if you go after Google.
The second issue is very, very important and that is the jury image. You're sitting in a courtroom in Silicon Valley and on one side you have Apple, the local hometown hero and on the other side you have 'that foreign company.' Very different image than on one side you have Apple and on the other side you have Google. The jury's going to respond very differently."
What's the Big Picture?
"One of the most interesting questions, I think, in this case is - should we be granting patents as broadly as we are in the design patent area? You know, up until this case, no one's paid any attention to design patents. We hand them out a dime a dozen and very little attention is paid. Now all of a sudden people are waking up and saying 'My goodness, we've handed patents out here on a black background and rounded corners? Should we really let someone have that entirely for themselves?' ... 'Is that the kind of protection that we should be giving or have we gone way overboard with the patent system?'"
"What's happening in the trial I believe and also in this larger war is emblematic of a patent system that has completely gone out of control. What you're seeing is small companies, large companies, are repackaging, trading, putting together large groups of patents and then launching them at each other as offensive and defensive weapons."
Who is Going to Win?
"Based on the first two weeks of testimony, this isn't a slam dunk for either side, I think that's pretty clear. How a lay jury is going to deal with these technical issues is really a big question."
"The fact that you have a patent doesn't necessarily mean that that patent is going to be valid or that the claims are going to be upheld. It's much easier to get a patent out of the Patent and Trademark Office than it is to defend it in court and get it to stand up. The [Patent and Trademark Office] just doesn't have the resources to look carefully at each of these so the fact that Apple has this patent doesn't necessarily mean that it will stand up."
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