Linked by Thom Holwerda on Sun 29th May 2011 17:23 UTC, submitted by John
Legal In order to not overwhelm OSNews with even more legal news, I didn't report on the recent developments in Apple v. Samsung until we had some more stuff to consolidate. Well, since the goings been getting good lately there, let's talk about it. Samsung was ordered to hand over a slew of unreleased products and materials to Apple, and now, Samsung, for its part, has demanded that Apple hands over the iPhone 5 and iPad 3 to Samsung. If they exist. This is gettin' good.
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Not about fairness so much..
by looncraz on Sun 29th May 2011 17:51 UTC
looncraz
Member since:
2005-07-24

The problem with Apple having Samsung's UNRELEASED in-development products is that they now have the ability to make copies in their own up-coming hardware and back-claim that Samsung must be engaging in espionage or has spies implanted and are stealing their ideas.

It would be an impossible claim to protect yourself against without forcing Apple to go on record with their unreleased in-development products at the same time to prevent such tactics.

That said, the Samsung phones are certainly not clones. They are phones with big screens... not much to work with when your phone is just a case for a screen... seriously!

--The loon

Reply Score: 3

RE: Not about fairness so much..
by kristoph on Sun 29th May 2011 18:22 UTC in reply to "Not about fairness so much.."
kristoph Member since:
2006-01-01

Many things wrong with your understanding of this situation ...

1) Apple does not get to 'have' any unreleased products. They will be able to have their attorneys look at these products in a room with Samsung attorneys.

2) The Samsung products in questions have already been displayed and in some cases given to journalists and such so these are not 'secrets' of Samsung. I

3) Apple is litigating on the basis that Apple's current products are being copied by Samsung's current AND future products. You can't sue someone for copying a product that no one has seen unless you're claiming you trade secrets were stolen, which Apple is not.

Reply Score: 5

Thom_Holwerda Member since:
2005-06-29

Apple is litigating on the basis that Apple's current products are being copied by Samsung's current AND future products.


In that case - I'm suing you because in six months you might break into my house and steal my TV.

Reply Score: 4

flanque Member since:
2005-12-15

I suspect a more sound basis is required, such as being in the business of house robbing.

Reply Score: 1

JAlexoid Member since:
2009-05-19

So... When was Samsung defined as an Apple copycat by a court of law or themselves?

Reply Score: 3

kristoph Member since:
2006-01-01

Samsung has already been sampling these products.

To use your analogy you could sue me (as well as have me arrested) if you found me in your house holding your TV even though I did not remove it from your house at that point.

Reply Score: 3

RE[2]: Not about fairness so much..
by Fergy on Sun 29th May 2011 18:45 UTC in reply to "RE: Not about fairness so much.."
Fergy Member since:
2006-04-10

2) The Samsung products in questions have already been displayed and in some cases given to journalists and such so these are not 'secrets' of Samsung.

You probably thought Minority Report was a great idea to catch future criminals ;)

Reply Score: 3

looncraz Member since:
2005-07-24


1) Apple does not get to 'have' any unreleased products. They will be able to have their attorneys look at these products in a room with Samsung attorneys.


A sneak peek is a sneak peek is a sneak peek.


2) The Samsung products in questions have already been displayed and in some cases given to journalists and such so these are not 'secrets' of Samsung. I


There is a significant different between display and hands-on. Not to say that this doesn't weaken the point, but it does not obliterate it.


3) Apple is litigating on the basis that Apple's current products are being copied by Samsung's current AND future products. You can't sue someone for copying a product that no one has seen unless you're claiming you trade secrets were stolen, which Apple is not.


I specifically stated that Apple could make such claims to protect their case by claiming future Apple products had in fact also been copied. Samsung could not protect themselves from such a claim without like-access to Apple's in-development products.

If you deny Samsung access to the iCrap 3 then Apple can keep the case alive by claiming corporate spies are at play, to which Samsung could not answer. Judges are suppose to look forward to such shenanigans.

Further, it is likely that Samsung devices could be copied by the iCrap 3 given such accesses without a display of status for in-development iCrap products. This is like the court ordering you to give up your product development DETAILS to a rival company, without any benefit of protection.

Naturally, however, the judge can always deny now, and wait for Samsung to issue another request when the time is needed, but Samsung would likely prefer to use it as an excuse for another lawsuit of similar design as the one at hand.

Happens ALL THE TIME.

You must remember, you are not dealing with humans. These are lawyers. The outcome of a case all too often has scant connection with the merits of original complaint, though that depends on the judge.

--The loon

PS: You also must consider that there is a counter-suit, without it denial would be a given.

EDIT: oops...

Edited 2011-05-29 19:18 UTC

Reply Score: 0

kristoph Member since:
2006-01-01

A sneak peek is a sneak peek is a sneak peek.


No, it's not. The Samsung Galaxy Tab 10.1 is one of the products, for example. It's already in the hands of 10's of thousands of people (their giving it away for free to developers). It's just 'unreleased'.

Samsung could not protect themselves from such a claim without like-access to Apple's in-development products.


That makes no sense. If Apple were to add something to IPad 3 that the current Samsung product has then Apple could not claimed anyone copied it.

If you deny Samsung access to the iCrap 3 then Apple can keep the case alive by claiming corporate spies are at play


Now your in tin foil hat territory.

Further, it is likely that Samsung devices could be copied by the iCrap 3 given such accesses without a display of status for in-development iCrap products. This is like the court ordering you to give up your product development DETAILS to a rival company, without any benefit of protection.


All the Samsung products in question can be seen on any decent tech blog. Thousands of people already have them. It's one thing to be able to see the thing though and it's another to legally use it as a piece of evidence in litigation.

Reply Score: 2

looncraz Member since:
2005-07-24

" A sneak peek is a sneak peek is a sneak peek.


No, it's not. The Samsung Galaxy Tab 10.1 is one of the products, for example. It's already in the hands of 10's of thousands of people (their giving it away for free to developers). It's just 'unreleased'.
"

Yes it is so. We are not talking logic, we are talking court procedure. The product in question is an unreleased piece of hardware by a competing company. Providing direct access through the courts is actually non-standard. The standard is a neutral 3rd party.

Samsung could not protect themselves from such a claim without like-access to Apple's in-development products.


That makes no sense. If Apple were to add something to IPad 3 that the current Samsung product has then Apple could not claimed anyone copied it.
[/q]

We are not talking about items to which Apple has laid complaint in exclusion to all others. That is to say that if Apple receives access to unreleased products from their rival, via the court, the court has then opened up a POSSIBLE case in which a rival is given an unfair advantage which the court itself mediated.

In practice, it is customary to consider unreleased products as wholly protected entities. It does not matter one bit that Samsung has been giving these away to select customers. It only matters when sale restrictions are released and they then become governed by the laws of the market-place. Then a court order is not needed, of course.

If you deny Samsung access to the iCrap 3 then Apple can keep the case alive by claiming corporate spies are at play


Now your in tin foil hat territory.
[/q]

Nope, this stuff happens all the time. Do some research. It is the duty of the court to prevent themselves from being an enabler for this kind of activity, though it is not a determiner for the ruling. The issue normally just ends up in further lawsuits, so it is something to be considered.

Further, it is likely that Samsung devices could be copied by the iCrap 3 given such accesses without a display of status for in-development iCrap products. This is like the court ordering you to give up your product development DETAILS to a rival company, without any benefit of protection.


All the Samsung products in question can be seen on any decent tech blog. Thousands of people already have them. It's one thing to be able to see the thing though and it's another to legally use it as a piece of evidence in litigation. [/q]

As mentioned, to use it as evidence in litigation the customary procedure is an uninterested 3rd party reviewer/mediator. Apple is asking to be given direct access to their competitor's unreleased products. Everything else surrounding that is not very important.

This is not to say that I expect the court to provide Samsung access to the unreleased iCrap, I wholly expect the opposite, it is to say that I would anticipate a cause for the judge to require a 3rd party reviewer. It is also possible the judge will look at it in the view that at some point Samsung would have to submit their devices as evidence anyway to disprove meaningful similarities, so Apple can either wait - or they can have it now, because they'll end up with it later anyway.

The flip side is Samsung getting their request granted ( unlikely, but not impossible ).

--The loon

Reply Score: 2

jabbotts Member since:
2007-09-06

The question I'm having though; are Apple's lawyers all engineers also who can fully comprehend the technical details in order to find valid patent infringement? Trusting a lawyer to review and report on technological matters seems like trusting a florist to diagnose human illness and prescribe proper medication.

A room full of laywers reviewing in-development technologies hardly seems like the basis for valid recognition and claim of infringement. Won't Apple still need an engineer in the room to consult with the lawyers?

Reply Score: 4

looncraz Member since:
2005-07-24

The question I'm having though; are Apple's lawyers all engineers also who can fully comprehend the technical details in order to find valid patent infringement? Trusting a lawyer to review and report on technological matters seems like trusting a florist to diagnose human illness and prescribe proper medication.

A room full of laywers reviewing in-development technologies hardly seems like the basis for valid recognition and claim of infringement. Won't Apple still need an engineer in the room to consult with the lawyers?


You don't understand how the court is REQUIRED to view the lawyers. They are to be viewed as the party themselves. Your argument only, legally, makes sense when a NEUTRAL 3rd Party is involved. That 3rd party makes the determination of similarity in a non-biased manner by making, essentially, cliff notes as to their commonalities and their differences.

Because lawyers are direct representatives, the court must assume that they possess all knowledge and skills as the party in question. The courts are not to give special exception to lawyers because of their presumed lack of knowledge or relation to the party, lawyers are YOU in every sense of the law. You can even go to prison for the things they do AS YOU.

Power of attorney is a MF!

--The loon

Reply Score: 2

jabbotts Member since:
2007-09-06

Lawyers represent the company. No real surprise there. But lawyers are law experts who then consult topic experts. How can a law expert be qualified to review a technology without consulting a technology expert?

Unless they all have double degrees in Engineering and Law.. they are not qualified regardless of what the legal system assumes.

Reply Score: 2

RE[2]: Not about fairness so much..
by tupp on Sun 29th May 2011 22:33 UTC in reply to "RE: Not about fairness so much.."
tupp Member since:
2006-11-12

Many things wrong with your understanding of this situation ...

Certainly, someone's understanding of the situation is incorrect (probably clouded by the RDF).


1) Apple does not get to 'have' any unreleased products. They will be able to have their attorneys look at these products in a room with Samsung attorneys.

It is irrelevant as to who from Apple views the products. For this forced disclosure to make sense, the representatives from Apple will have to understand the essence of Samsung's products, whether the Apple reps are lawyers, engineers or janitors.

I would hope that a very restrictive NDA is implemented.


2) The Samsung products in questions have already been displayed and in some cases given to journalists and such so these are not 'secrets' of Samsung. I

If so, why does Apple need to see the products? They have already been disclosed.


3) Apple is litigating on the basis that Apple's current products are being copied by Samsung's current AND future products.

A lawsuit regarding what the defendant is thinking about the future has a very weak basis. However, with some of the crazy decisions that courts have made lately, any outcome is possible.


You can't sue someone for copying a product that no one has seen unless you're claiming you trade secrets were stolen, which Apple is not.

You can sue someone because their eyes are blue, but that doesn't mean you will win the case.

Furthermore, patents require disclosure, but copyrights do not. So, you could have a strong case by suing a second party for infringing on your copyright-protected software, that no one else has ever seen before.

In most jurisdictions, a patent gives someone the exclusive right to prevent others from making, using, selling, or distributing the patented invention without permission. So, if Apple is suing in regards to its patented technology, then it can stop Samsung from merely making any infringing prototypes or production models.

Ideally, the most compensation Apple could get in such a case would be limited to court costs and attorneys' fees. However, if Samsung sold/distributed infringing techonology or used the technology, then Apple could/should get additional compensation.

Design patents are probably a little different, because they rely on someone's subjective judgement on whether one design is like another design, and they also rely on the judge's sense of design history. I imagine that the judge(s) will have to be informed by Samsung about Apple's design banality and Apple's unabashed copying of others.

Don't really see ho Apple could win much of anything if it base its claims on Samsung's mere intent for future products (which includes drawings and other visual mock-ups). But, again, in these crazy times, anything is possible.

Reply Score: 2

kristoph Member since:
2006-01-01

One of these 'unreleased' products is the Samsung Galaxy Tab 10.1 which was given away to thousand of people at Google IO.

It's by no means a secret product.

It's just not released and so Apple cannot legally obtain one and present it as a piece of evidence to support their litigation.

Reply Score: 2

tupp Member since:
2006-11-12

One of these 'unreleased' products is the Samsung Galaxy Tab 10.1 which was given away to thousand of people at Google IO... It's just not released and so Apple cannot legally obtain one and present it as a piece of evidence to support their litigation.

Then Apple can have one brought into open court.

There is no need to have a separate disclosure meeting that includes other products.

Reply Score: 2

kristoph Member since:
2006-01-01

Debating the merits of this complain in open court, especially as Apple is likely to seek a preliminary injunction, is not practical. It's going to be a matter of dueling documents (as most commercial litigation).

Remember, as the judge said, their trying to establish if the Samsung products are so similar that they are likely to cause consumer confusion.

Reply Score: 2

tupp Member since:
2006-11-12

Then Apple can inspect the already disclosed/released products, at an agreed location.

The point is that there is no need for Samsung to reveal to Apple anything that is not yet disclosed/released.

However, Apple really has no valid claim on products with a touchscreen and a bezel in the styles of the Iphones and Ipads, as there is plenty of prior art of very similar design.

Edited 2011-05-30 00:04 UTC

Reply Score: 2

atsureki Member since:
2006-03-12

The judge ordered Samsung to hand over their upcoming products, despite such products already having been publicized, so that details about them can be entered as evidence. Web magazine articles are not suitable to the task - they need the real thing (so take off the tinfoil hats).

Further, Apple needs to know design details about upcoming products so they can ask the court for an injunction against their sale before they hit the market, rather than after. Apple's position is that they have been ripped off, and they want the court to stop the culprit from profiting by it. If Samsung's new batch of phones could escape the current suit without any relevant changes from the current models, what would be the point of suing? Apple can't ask the court simply to order Samsung out of the business. They need to know specifically which models (are going to) look how much like an iPhone. That's just how legal action works.

None of that was commentary on the actual merits, but I will say that while I don't think Apple should be the only company allowed to make a wedge that's mostly just a screen, I do think Samsung and Android are lazily copycatting. Microsoft makes software for screen-wedge-phones with a significantly different interface, while other Android phones have used a variety of physical inputs, Blackberry remains distinctive, and the Palm Pre is truly differentiated both in software and hardware as the rare vertical slider with a full keyboard. No one has to make something that's just like an iPhone for functionality's sake.

Reply Score: 2

tupp Member since:
2006-11-12

I do think Samsung and Android are lazily copycatting... No one has to make something that's just like an iPhone for functionality's sake.

I don't think so.

The LG Prada was winning design awards months before the Iphone was first introduced. The Iphone design is uncannily similar to the Prada. So, if anyone has been copied, it is Apple copying LG.

However, I doubt that Apple copied the Prada design entirely, as most design elements are fairly obvious and minimal with current touchscreen devices -- you have a touchscreen and a bezel. You might have an actual button or two. That's it. That's the whole idea behind touchscreen devices.

So, Samsung is not really copying anyone. It is just designing what is obvious.

Edited 2011-05-30 00:14 UTC

Reply Score: 3

not 'hand over'
by kristoph on Sun 29th May 2011 18:15 UTC
kristoph
Member since:
2006-01-01

The requests in question would permit counsel supervised access to these products. That is, Apple and Samsung lawyers get in a room and get to look, not engineers. Also, no one gets to take anything home.

Samsung is almost certainly going to lose their request to look at Apple's products because Apple's future products are not part of this litigation.

Samsung is just trying this tactic as a way to get some leverage on Apple.

Reply Score: 3

RE: not 'hand over'
by robojerk on Sun 29th May 2011 18:46 UTC in reply to "not 'hand over'"
robojerk Member since:
2006-01-10

Samsung is almost certainly going to lose their request to look at Apple's products because Apple's future products are not part of this litigation.
You forget Samsung has counter sued Apple, they might want to get a look at what future products they want to add to their suit against Apple.

Here's what a quick Google search found about the counter suit.
http://gigaom.com/apple/samsung-countersues-apple-for-patent-infrin...

Reply Score: 4

RE: not 'hand over'
by Soulbender on Sun 29th May 2011 22:40 UTC in reply to "not 'hand over'"
Soulbender Member since:
2005-08-18

Samsung is just trying this tactic as a way to get some leverage on Apple.


Wow, just like what Apple is doing.

Reply Score: 3

RE[2]: not 'hand over'
by kristoph on Sun 29th May 2011 23:20 UTC in reply to "RE: not 'hand over'"
kristoph Member since:
2006-01-01

Maybe but for Apple the hardware is directly relevant to the case.

Reply Score: 1

RE[3]: not 'hand over'
by Soulbender on Mon 30th May 2011 14:47 UTC in reply to "RE[2]: not 'hand over'"
Soulbender Member since:
2005-08-18

But their case is just about getting leverage.

Reply Score: 3

Patents - Are they good for us?
by dc.ricardo on Sun 29th May 2011 18:16 UTC
dc.ricardo
Member since:
2009-06-02

I want to put a lot of shortcut icons for applications on a screen that can scroll sideways on a device I'm building. After that, I want all the unreleased market devices makers to handle me their most valued technology just to make sure no one sues me in the near future.

Reply Score: 2

Comment by erdraug
by erdraug on Sun 29th May 2011 18:52 UTC
erdraug
Member since:
2007-05-25

Sounds like "guilty until proven innocent" to me.

Reply Score: 4

Look and feel
by Moredhas on Sun 29th May 2011 22:21 UTC
Moredhas
Member since:
2008-04-10

In all fairness, when the Galaxy S came out, it really did look a whole lot like the iPhone 3G and 3GS. There are reasonable crounds for thinking Samsung have copied Apple's previously released products, and the icons used on the Galaxy s (at least before it's first firmware update, I think there have been subtle changes since then) did look a lot like the iPhone's; although there isn't really much to work with, in that amount of space.

Other manufacturors have made devices with large glass touchscreens and few visible buttons, though, and it's more a matter of style and fashion than Apple's obscure concept of "trade dress" or whatever they're calling it. Given the imminent release of the Galaxy S II and the inevitable announcement of another iteration of the iPhone at the WWDC next month, this lawsuit's purpose is painfully clear to me. Apple aren't seeking to have Samsung's device barred from the market FOR EVAR, nor are they really after some obscene cash payout (but hey, reach for the stars, right?). What they really want is a brief stay on Samsung being able to ship the S II until after the iPhone iteration has been in the market for about a month. The Galaxy S, after it picked up momentum, made a huge impact in Apple's iPhone sales due to the poor stock levels and only just beating it to the market, and I think Apple are keen to avoid a repeat.

Reply Score: 2

RE: Look and feel
by tupp on Sun 29th May 2011 23:48 UTC in reply to "Look and feel"
tupp Member since:
2006-11-12

In all fairness, when the Galaxy S came out, it really did look a whole lot like the iPhone 3G and 3GS.

The Iphone looks a lot like the LG Prada, which was winning design awards months before Jobs first introduced the Iphone in 2007. Here is an article from December 15th, 2006, that mentions one of the design awards that the Prada had already won: http://mobile.engadget.com/2006/12/15/the-lg-ke850-touchable-chocol...

The Iphone was the same shape/size, had a full touchscreen like the Prada, had a button on the bottom, like the Prada and had a similar shiny bezel.

Now, whether one product looks like another can be very subjective (although most would probably agree that the design differences between the Prada and the Iphone are trivial). However, if Apple fanboys cite such subjectivity (to avoid condemnation on copying the Prada), how can Apple fanboys rightfully claim that Samsung is copying Apple's design?

Reply Score: 6

RE[2]: Look and feel
by kristoph on Sun 29th May 2011 23:52 UTC in reply to "RE: Look and feel"
kristoph Member since:
2006-01-01

Fortunately, it's not the Apple or the Android fanbois who get to decide but rather judges and juries.

Reply Score: 1

RE[3]: Look and feel
by tupp on Mon 30th May 2011 00:00 UTC in reply to "RE[2]: Look and feel"
tupp Member since:
2006-11-12

Fortunately, it's not the Apple or the Android fanbois who get to decide but rather judges and juries.

Not sure if it's best for an ignorant judge to be deciding such a case. We've seen what happened in Psystar and similar instances.

An ignorant jury is not much better.

Both ignorant judges and juries will probably ignore the obvious similarities between Apple's products and prior art.

Edited 2011-05-30 00:02 UTC

Reply Score: 3

Depends on the bear
by anda_skoa on Mon 30th May 2011 17:32 UTC
anda_skoa
Member since:
2005-07-07

That's kind of like bringing a teddy bear to a gunfight - it looks cute, but it dun' stop no bullets.


A Kevlar teddy bear with ceramic inlays certainly would ;)

Or for hiding an additional weapon, the pig from RED http://www.imdb.com/title/tt1245526/ comes to mind.

Reply Score: 2

Comment by Piot
by Piot on Tue 31st May 2011 18:03 UTC
Piot
Member since:
2009-09-17

@Thom "To me, this sounds like a totally ridiculous demand, but the judge disagreed...."

I rest my case!

Reply Score: 1