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Apple had licensed Apple iPhone and Apple iPad patents to Microsoft; battle over jury instructions

Posted: , by Alan F.

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Apple had licensed Apple iPhone and Apple iPad patents to Microsoft; battle over jury instructions
After the weekend recess, Apple put its patent licensing director, Boris Teksler, on the stand where he testified that Apple had licensed Apple iPhone and Apple iPad patents to Microsoft with the provision that the Redmond based company not build any devices using Apple's designs. Teksler also said that Apple had reached out to Samsung in October 2010, confirming the presentation document that was brought up in court last week. Apple's licensing director made a point of noting that you could count on one hand the number of times that Apple had licensed its prized technology which makes the offer to Samsung look like a gift.


"You have heard allegations by Apple that certain of its designs and patents have been copied. Regardless of whether you as the jury accept this testimony, you may not consider it in deciding whether any patents in this case have been infringed. Copying is not an element of patent infringement."

"Evidence of copying, if established, is only relevant as one of several considerations you will need to account for in deciding whether a patent is invalid because it was an obvious design."

"Did others copy the claimed design? Where parties have a practice of marketing very similar products, however, evidence of copying is not a strong indicator of non-obviousness, but rather a measure of the extent to which parties in the market typically follow developments by their competitors, whether patented or not."-Proposed Samsung jury instructions
The anti-clone provision of its deal with Apple could explain why Microsoft never made a Zune Phone as expected, perhaps feeling that it was too close in design to Apple's smartphone. Now, though, Microsoft is about to launch its Surface tablet and there is some thought that the tablet might violate the ant-clone clause of the licensing deal Microsoft has with Apple. But that is another lawsuit for another day.

We told you yesterday that Judge Lucy Koh had asked both sides to meet face to face on Sunday and to turn in their jury instructions early Monday morning. Both sides are having problems deciding on what Judge Koh should say to the jury before deliberations. Apparently it is coming down to copying versus patent infringement. As FOSS Patents Florian Mueller notes, "Even with a 100% independent creation, you can be liable for infringement -- and even with 100% intentional copying, you are not liable for anything if there is no valid patent within the scope of which your copied product falls."

Copying is not illegal although Apple is trying to prove that it does lead to other claims such as "willful infringement," "trade dress secondary meaning," and  "indirect infringement." Samsung says that it hasn't copied Apple, but even if it did it has no relevance on whether Samsung infringed on Apple's patents. As a result, the Korean based tech titan wants the jury to be told that even if they believe that Apple's designs have been copied, they cannot use this in determining if Samsung infringed on Apple's patents. Another part of the instructions that Samsung wants to use that Apple is protesting, basically states that in an industry with similar products put out by different manufacturers, evidence of copying just shows that the players in the industry follow the designs of their competitors whether patented or not.

What Judge Koh decides on for the jury instructions regarding copying and infringement could  determine the outcome of the case.

source: FOSS Patents, AllThingsD

25 Comments
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posted on 13 Aug 2012, 15:57

1. Phoneguy007 (Posts: 218; Member since: 02 Jun 2011)


sigh!!!!!!

posted on 13 Aug 2012, 20:34 2

21. MeoCao (unregistered)


Apple's one main objective is using the lawsuit to discredit Samsung, that's why they repeat the theme "copycat" again and again with little relevance to the substence of the case.

posted on 13 Aug 2012, 22:17 1

22. Droid_X_Doug (Posts: 5856; Member since: 22 Dec 2010)


Patent validity is the heart of Apple's case. No valid patents means no infringement. Jury instructions are going to be key.

posted on 14 Aug 2012, 03:18

25. anywherehome (Posts: 971; Member since: 13 Dec 2011)


yes....sigh....the corrupted iKoh will instruct the jury: "this is not about validity of (stupid) the patents this trial is about infringement, so decide so"

so Samsung is going probably to loose......thanks god they can appeal to get no iJudge from iTunes, hope.

iKoh would be great even with a case of infringement the "wheel patent" ....she doesn't care what is good she cares just about money

posted on 13 Aug 2012, 16:01 4

2. speckledapple (Posts: 879; Member since: 29 Sep 2011)


Microsoft and Apple have had cross licensing deals for years now. They both use and license patents for use in their products. I doubt Microsoft would need to produce a copy of what Apple creates as they do a great job standing on their own. This article should take note of that fact.

posted on 13 Aug 2012, 16:16 1

4. PhoneArenaUser (Posts: 5480; Member since: 05 Aug 2011)


"Microsoft and Apple have had cross licensing deals for years now. They both use and license patents for use in their products."

Could you name what exactly cross licensing deals have Microsoft and Apple, please?

posted on 13 Aug 2012, 16:40 5

7. speckledapple (Posts: 879; Member since: 29 Sep 2011)


http://www.windowsitpro.com/article/paul-thurrotts-wininfo/apple-microsoft-crosslicensed-patents-agreed-clone-products-143983

In black and white.

posted on 13 Aug 2012, 16:47

9. PhoneArenaUser (Posts: 5480; Member since: 05 Aug 2011)


Thanks. :)

They made stange agreement.

posted on 13 Aug 2012, 18:38 3

13. remixfa (Posts: 13930; Member since: 19 Dec 2008)


who wants to bet that it was a net even cross patent where neither company paid anything?
And yes, Apple owes MS everything. If it wasnt for the kindness of Bill Gates propping up a COMPETITOR so it wouldnt fail with a massive cash injection through stock options, Apple wouldnt even be here today.

NO ONE in the industry pays $40 per phone for ANY patent or any group of patents. Apple is extorting under threat of nearly unlimited legal action (which its obviously following through on). MS has one of the highest per phone pay outs at about $5-7 a phone with their agreement with HTC.
Rectangles, green phone icons, and bouncy menus are not worth $40 bux per phone. Sorry.

posted on 13 Aug 2012, 17:24 4

12. MartyK (Posts: 714; Member since: 11 Apr 2012)


Not to mention MS gave Apple some money to survive in the 80's and 90's..

posted on 13 Aug 2012, 19:17

16. groupsacc (Posts: 232; Member since: 28 Feb 2012)


Well, I guess Bill Gates felt little sympathetic towards Apple, as he won the battle of "who's the first to steal Xerox's GUI" and left Apple in the dust.

posted on 13 Aug 2012, 19:26 1

18. tedkord (Posts: 4937; Member since: 17 Jun 2009)


Bill Gates felt a little scared that the U.S. government would consider Microsoft a monopoly when the only really competing OS vanished. That's what that was all about.

And doubt think for a second that it didn't eat Steve Jobs' ass that he had to thank Gates for saving Apple.

posted on 14 Aug 2012, 00:54 1

23. Droid_X_Doug (Posts: 5856; Member since: 22 Dec 2010)


The bile that Steve had to swallow when he had to go see Bill on bended knee may have contributed to Steve's pancreatic cancer.

After losing the lawsuit with MS over a poorly worded license agreement, Steve swore a holy oath to never get screwed again. Going thermonuclear on Google was just the latest manifestation of never getting screwed again.

posted on 13 Aug 2012, 16:01 10

3. Santi_Santi (unregistered)


Samsung already won this case. BOOOH YAAAH!

posted on 13 Aug 2012, 16:27 3

5. matrix_neo (Posts: 321; Member since: 03 Nov 2011)


Good article Alan, you should be part of samsung's legal counsel.

After samsung and apple, microsoft might be the next apple to sue, it seems their surface tablet violates their licensing deal. This is another interesting story to follow.

posted on 13 Aug 2012, 16:28 8

6. tedkord (Posts: 4937; Member since: 17 Jun 2009)


Considering there'd be no Apple today if not for Microsoft, I'd imagine they've got to license to them, and not at some silly $30 per phone for shapes and patterns.

posted on 13 Aug 2012, 20:30 1

20. MeoCao (unregistered)


Agree

posted on 13 Aug 2012, 16:43 2

8. Santi_Santi (unregistered)


3 Devices tossed on apple vs Sammys case, Galaxy Ace, Galaxy S and Galaxy S2... BOOOH YAAAH

posted on 13 Aug 2012, 17:15

10. XPERIA-KNIGHT (unregistered)


Getting down to the nitty gritty! and It sounds like Samsung is right about what they are asking the judge to say.......

posted on 13 Aug 2012, 17:21 5

11. Angkor (Posts: 108; Member since: 05 Jul 2012)


Apple had licensed its prized technology???? which makes the offer to Samsung look like a gift. Apple technology was nothing beside drawings and none working concepts.

Judge Koh must close this case "look and feel" wasting too much money for nothing.

posted on 13 Aug 2012, 18:41 3

14. remixfa (Posts: 13930; Member since: 19 Dec 2008)


from the sounds of the article, basic copying "zomg a rectangle!" is not illegal unless its a direct patent infringement. So with that in mind then it sounds like Samsung is right in asking that she tell the jury to disregard their feelings on if samsung "copied" or not as part of the deciding practice.

If Apple cant prove patent infringement on their whimsical patents, case closed.. period... regardless of any "similarities" in looks.

posted on 13 Aug 2012, 19:13

15. khmer (Posts: 93; Member since: 21 Jun 2012)


U.S. Patent Office should change rules of application patent process from now only working devices, applications, etc. to be award and none working patents should not be award. The look, feel, copy, clone, drawings, none working concepts, etc. or any patents are none working patents should be voided from Patent Office. After patents awarded must allow 90 days to prove that patents are working, if not working than voided. Apple is abused on patent licensing that banned and destroy HTC revenue and banned Samsung products it was very bad patent abused.

Thomas Jefferson was appointed to be the first head of the U.S. Patent Office in 1790, and said patents had “given a spring to invention beyond my conception.” Prior to that, though, he was against patents, as he worried “abuse of frivolous patents is likely to cause more inconvenience than is countervail by those really useful.”

With patent lawsuits flying across borders, corporations and brands, which side of the patent argument has dominated: frivolously abusive or springily inventive?

posted on 13 Aug 2012, 19:24

17. sgogeta4 (Posts: 392; Member since: 02 Feb 2011)


Even with a 100% independent creation, you can be liable for infringement -- and even with 100% intentional copying, you are not liable for anything if there is no valid patent within the scope of which your copied product falls.

^ this is why patent laws need to change. It's ridiculous that this statement holds true in law.

posted on 13 Aug 2012, 19:28

19. tedkord (Posts: 4937; Member since: 17 Jun 2009)


Software patents should be done away with. Copyright is enough protection. When you can patent a vague idea, innovation loses.

posted on 14 Aug 2012, 01:59

24. Bluesky02 (Posts: 1439; Member since: 05 Dec 2011)


Keep dreaming if Apple will sue Microsoft, they had issues in the 90's which has been fixed. Moreover Windows 8 doesn't look anything like an iPhone OS.

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