Intellectual Property, Technology, and the Law
Mobile Madness continues (updated on June 15, 2011)…
Today was a big day. Finally, after almost 2 years, Apple finally settled with Nokia. Nokia had sued Apple back in October 2009 for patent infringement. Nokia cited 10 of its patents, covering technologies such as GSM, UMTS (3G) and WiFi.
At the time, it was an interesting lawsuit because it involved what are called Standards Setting Organizations, or SSO’s. Very generally speaking, SSO’s are organizations that count various industry players as its members. Their general goal is to develop, agree upon and promulgate a set of standards that will, in theory, benefit the entire industry by maximizing interoperability and minimizing risk such that companies know which path certain technologies are heading down and being able to prepare and strategize accordingly.
With that said, I would like to introduce the first installment of what I hope becomes a regular feature on this blog. I am calling it “Mobile Madness.”
We are currently witnessing a historic and ubiquitous migration in technology. Not too long ago, in the late 1980s, personal computers were becoming commonplace in the American household. Yet, only two decades later, a major shift has started from these PCs to smartphones. My brother recently told me that he goes days without using a PC (whether desktop, laptop or netbook), because he can do all of his work and surfing with his iPhone.
With this migration, we see conflict. But the conflict is nothing like some of the skirmishes we saw in the PC days. The dynamics of the mobile market are multilayered and include a myriad of players, interests, and technology spaces. Battles loom over hardware, software, look and feel, just about anything. And they involve just about every single IPR (intellectual property right) imaginable. These are exciting times for an IP practitioner.
And thus, Mobile Madness. Since I’ve been scarce with time lately, I’ve got a bunch of issues to cover. I intend to have shorter blog posts in the future. But whatever, here you go! Without further ado…
I’ve been meaning to blog about a number of interesting intellectual property related issues, stories and opinions I’ve read over the past week or so, but haven’t had the time until now. I am going to dispense with any clever segues and just post them along with some comments.
Have you seen The Hangover? If you have, you’ve probably seen the Hangover 2 trailer. Check this out — a tattoo artist is suing Warner Brothers over the design of the face tattoo he provided to none other than Mike Tyson, whereas said tattoo was used in The Hangover 2 by Stu Price, the dentist who lost his tooth in the original. Any time intellectual property gets crossed with a bachelor party, you just gotta write about it. You dig?
Among a plethora of stupid things our Government is doing, one of them is cutting the USPTO budget. Well, to me, few things make as much sense as the USPTO having a satellite office in one of the world’s most active innovation volcanoes, the Silicon Valley. But the Government isn’t going to do it. And that’s too bad. Job creation, better patents, more innovation, more investment… ah, the heck with it. You’re right. It makes too much sense. Click here for the link.
Do you know the story of the “Shot Heard Round the World”? Most people think it’s Bobby Thompson’s home run that won the Giants the pennant in 1951. But it in fact refers to a Ralph Waldo Emerson poem called “Concord Hymn“:
By the rude bridge that arched the flood,
Their flag to April’s breeze unfurled,
Here once the embattled farmers stood,
And fired the shot heard round the world.
This shot referred to a shot fired in a confrontation between British soldiers and (soon to be) American citizens, and it quickly escalated the conflict into The Revolutionary War. (Which America won. Take that, Royal Wedding!)
Well, the first shot was fired two weeks ago, when Apple filed a lawsuit in the United States (Northern California District Court) against Samsung. Apparently, Samsung was probably expecting to get sued, because they filed retaliatory lawsuits in three different countries (South Korea, Japan and Germany). And just today, Samsung also filed a countersuit against Apple in the Northern California District Court. So lots of shots have been fired, and we’re only two weeks into this!
Earlier this week, on April 18, 2010, the Supreme Court heard oral arguments in the Microsoft v. i4i case. As with any patent related case that makes its way to the Supreme Court, the intellectual property community is eager to see what the outcome is, and what effect it might have on their day to day activities.
Unfortunately, as with most patent cases that make their way to the Supreme Court, the Court is likely to offer a very narrow opinion that leaves many important questions unanswered. Time will tell.
The issue at hand is best summarized by the question presented:
The Patent Act provides that “[a] patent shall be presumed valid” and that “[t]he
burden of establishing invalidity of a patent or any claim thereof shall rest on the party
asserting such invalidity.” 35 U.S.C. § 282. The Federal Circuit held below that Microsoft
was required to prove its defense of invalidity under 35 U.S.C. § l02(b) by “clear and
convincing evidence,” even though the prior art on which the invalidity defense rests
was not considered by the Patent and Trademark Office prior to the issuance of the
asserted patent. The question presented is: Whether the court of appeals erred in
holding that Microsoft’s invalidity defense must be proved by clear and convincing
The “clear and convincing” standard lies somewhere between the “reasonable doubt” standard for criminal cases and the “preponderance of the evidence” standard for civil cases.
Microsoft is essentially arguing that during litigation regarding the validity of a patent, that prior art not considered by the examiner during prosecution of the patent should be subject to the lower “preponderance” standard. i4i, of course, argues that the existing “clear and convincing” standard should remain intact. The rationale behind the current standard is that a certain amount of deference is provided to the United States Patent and Trademark Office (USPTO). Put another way, merely getting more than 50% of the evidence on your side should not allow you to overcome the opinion of an expert body such as the USPTO.
Yours truly isn’t nearly the first to comment on this topic and take a side.