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

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.

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

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