Apple and Samsung Agree To Settlement Talks

tlhIngan writes "It looks like the Apple v. Samsung war might be over soon. Both parties have agreed to meet to attempt to reach a settlement. While they are not required to settle (Google and Oracle recently went through the same process), it could be a positive signal that Apple might be willing to license the patents under Tim Cook, versus fight it out in court under the late Steve Jobs."

Comments

The dead

[barista]

Return of the King aside, the dead usually don't put up much of a fight.

Re:The dead

[TWX]

I donno, I can think of numerous films that have otherwise. Especially films starring Bruce Campbell...

Re:The dead

[Hentes]

You would think so, but even if your enemy dies, their IP will remain to haunt you for centuries.

Re:The dead

[Penguinisto]

I donno, I can think of numerous films that have otherwise. Especially films starring Bruce Campbell...

...or directed by George Romero.

Apple willing to license?

[sosume]

I still cannot understand why very technical inventions (such as 3G and GSM) can only be licensed under FRAND conditions, but fluff like 'slide to unlock' (have that in my toilet) or rounded corner ("they are everywhere!") yield massive license income.. I would really love to see this before a judge so we can finally get this mess cleaned up for good.

Re:Apple willing to license?

[Desler]

Because that's he agreement you make by having your patents included in a standard?

Re:Apple willing to license?

[AdrianKemp]

3G, GSM, etc. are not technical inventions.

They are standards.

When a standards body agrees to take a patent as part of the standard, they generally require FRAND licensing as part of that agreement.

Nowhere anywhere does something *have* to be FRAND, but if you want it in a standard you're going to be going down that road.

Re:Apple willing to license?

[gnasher719]

I still cannot understand why very technical inventions (such as 3G and GSM) can only be licensed under FRAND conditions, but fluff like 'slide to unlock' (have that in my toilet) or rounded corner ("they are everywhere!") yield massive license income.. I would really love to see this before a judge so we can finally get this mess cleaned up for good.

Explanation: Some patents are part of a standard, and everybody _must_ use them to use that standard. If one company with patents used in the 3G standard for example refused to license their patents, then they would have a monopoly. If two companies refused to license their patents, then we would have no 3G phones. Therefore, whenever some standard is created, everyone has to agree to license their patents under FRAND conditions. If you refuse, they will change the standard so that your patents are not part of it.

"Slide to unlock" is not _required_ by anybody. You can build a perfectly nice phone without using that patent. "Rounded corners" on the other hand is not something that is patented, or patentable, and referring to it seems to indicate that you are a bit clueless. You can get a design patent for a design which consists of many, many design elements, and only someone copying that combination of design elements would be infringing. I can get a design patent for a phone that has A, B, C, D and E, and you would then be free to create a phone that has A, C, D and E, but not B.

Re:Apple willing to license?

[UnknowingFool]

There is a difference between a design patent and a functional one. If you contend that design patents should not exist, then no company could protect their designs. Raye Ban sunglasses , Suny headphones, Koach purses would be everywhere and legal. The legal argument has not been whether Apple had the design patents (they do) . The question has been whether Samsung deliberately copied their design. Using one point of the 24 points in Apple brief says you we not reading the whole thing.

Re:Apple willing to license?

[Anonymous Coward]

"Rounded corners" on the other hand is not something that is patented, or patentable, and referring to it seems to indicate that you are a bit clueless. You can get a design patent for a design which consists of many, many design elements, and only someone copying that combination of design elements would be infringing. I can get a design patent for a phone that has A, B, C, D and E, and you would then be free to create a phone that has A, C, D and E, but not B.

Bullshit. Design patents do not rely on a specific enumeration of elements, but on drawings, and the similarity to these drawings need not be absolute. For instance, the iPad design patent (D504889) being asserted against Samsung shows a square edge between the front face and all sides. And yet, making a tablet contaning all elements of that design except the square edge (replacing it, say, with a small radius) would not keep you safe -- in fact the iPad itself has a small radius here. The test for infringement regards the overall effect of the design (excluding functional elements), viz. whether "in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same" (Gorham v. White).

See Amini Inovation Corp. v Anthony California, Inc., where an element-by-element comparison of the type you endorse was rejected:

[T]he trial mistakenly analyzed each element separately instead of analyzing the design as a whole from the perspective of an ordinary observer. The trial court is correct to factor out the functional aspects of various design elements, but that discounting of functional elements must not convert the overall infringement text to an element-by-element comparison.

Picking one element and changing it doesn't mean you don't infringe; the only way to avoid infringing is to make sure the whole design is sufficiently dissimilar to avoid infringement, and whether one element is enough depends on the prominence of that element and of whatever you replace it with.

Of course, this is part of why design patents are an evil blight -- it's too hard to avoid infringement, and too hard to clarify what elements are functional vs. ornamental, when a major principle of good industrial design is simplicity, and the reduction to functionality -- the better the design, the blurrier the line of infringement becomes!

Re:Apple willing to license?

[mjwx]

I still cannot understand why very technical inventions (such as 3G and GSM) can only be licensed under FRAND conditions, but fluff like 'slide to unlock' (have that in my toilet) or rounded corner ("they are everywhere!") yield massive license income.. I would really love to see this before a judge so we can finally get this mess cleaned up for good.

Rather, why is software able to be patented at all?

You cant patent 2+2=4 because anyone can figure that out, same with software. Someone with no exposure to your software, with the same goal is likely to figure out the same way to do it if it is the most logical conclusion, same as 2+2=4.

But this is Apple more or less admitting it has no real case and stands to have more damage done to it by fighting Samsung. Their attempts to get injunctions have failed, the Galaxy brand has gone gangbusters, Apple lost and are looking for the cheapest way out..

Sanity returning to Apple?

[ilsaloving]

I hope that this is a sign that saner heads are starting to prevail now that they no longer have an ego-maniac at the helm. Steve Jobs definitely had a very good sense of aesthetics and industrial design, which led to excellent products and services. But by all accounts he was, to put it mildly, an asshole.

I really hope that under the current leadership, Apple will start learning to play more nicely with others without sacrificing the aspects that brought them to the point they're at now.

Re:Sanity returning to Apple?

[Mordermi]

Really? I had a Galaxy S and it looked and felt nothing like an iPhone. Car analogy for /.? Sure, I feel that it's basically like mistaking a Camaro for a Charger. Really, they're that different. They're both muscle cars, they're both nice, they both have the same basic functions, but they're entirely different and anyone that knows anything about cars would never confuse them.

Re:Sanity returning to Apple?

[Karlt1]

You mean Apple under Cook may consider allowing Flash on their devices? The most recent complaints I've heard about the iPads from coworkers is that their shiny new toy doesn't seem to be able to show all of the webpages they look at.

Where have you been? Adobe is abandoning Flash for Android and every other mobile platform.

http://blogs.adobe.com/conversations/2011/11/flash-focus.html

Headline somewhat misleading (surprise)

[Registered Coward v2]

The court ordered them to talk and try to reach an agreement; something a judge can do. However, that does not mean they have to settle. Since it is both CEOs and senior council at the talks, you'd think they could reach an agreement. Cook seems like a rational person, and I assume the head of Samsung is as well. My guess is some sort of cross licensing deal with maybe an agreement to keep talking to avoid food fights in the future. This is a classic case of both sides needing the other and to try to find a way to put away the gun they've pointed at each others head without losing face.

Re:Headline somewhat misleading (surprise)

[xeno314]

Eh, it's misleading for a couple reasons that lay people don't always realize. Think of it like this - it works in exactly the same way that news organizations make headlines out of people pleading 'not guilty'. That isn't news. Any attorney would advise their client to plead not guilty at the initial arraignment - you do the leg work and dealing on the case later, and maybe the plea gets changed in a deal. Either way, it's boilerplate to start with 'not guilty'.

This is an equally unremarkable headline. State and federal courts almost universally have local rules that permit judges to order mediation or just flatly require mediation. That's what's happening here. Apple and Samsung may or may not 'agree' in this case, but they'll be doing it anyway because that's how the system works. To sum up, there's no news here, civil procedure is just taking its natural course. The headline (and source article) are both somewhat misleading because there's no real news here, and the two companies aren't negotiating just because they think it's the best thing to do.

(Articles like this are one of my pet peeves as an attorney. I often wonder what the equivalents are for other professions...)

Hm...

[JustAnotherIdiot]

it could be a positive signal that Apple might be willing to license the patents under Tim Cook, versus fight it out in court under the late Steve Jobs.

Or it could be a sign that Apple realized they're fighting a losing battle so they're trying to salvage what little they can keep.

Re:Hm...

[AdrianKemp]

OR

It could be a sign that the judge effectively ordered them to do it. If they'd said they weren't available/willing to sit down the judge would have deemed them uncooperative.

Re:Hm...

[msobkow]

Why is this "insightful"? The only reason they're at the negotiation table is the judge in the case ORDERED them to talk. It doesn't indicate anything about a change of policy or mindset on behalf of either party.

You are right, you don't understand.

[Brannon]

Nobody forced anybody to license anything under FRAND conditions. The patent holders voluntarily committed them to FRAND licensing in order to get them included within a standard. That's how standards work. By the way, FRAND doesn't mean "free" as you seem to believe, some of those companies make a lot of money off of their FRAND patents. It means that you can't charge Apple more than you charge Toshiba--which is exactly what Motorola was trying to do.

Also, design patents != standard patents. Nobody is claiming that rounded corners is some kind of technical invention, that isn't the purpose of design patents--they are *by definition* aesthetic. They exist so that a competitor can't make a look-alike replica of your product and then sell it to confused customers--which is exactly what Samsung was trying to do.

All that said, I think Apple overstates their case sometimes by assuming every feature on another phone which is similar to an iPhone was copied from the iPhone. Sometimes there is a simpler explanation, like two people trying to solve the same problem came up with a similar answer, or the feature actually existed in an earlier product.

Re:You are right, you don't understand.

[Compaqt]

And there aren't any imaginary property remedies other than design patents?

Anyway, the Samsung is not in the same category as the knockoff "Eyephone" (props to the guy who made it for the corniest knockoff).

And yeah, it happens to be black with round corners, but so is half the stuff on my desk (the other half is grey with rounded corners).

And it prominently states SAMSUNG.

Finally, is the new judicial standard going to the "dumbest smartphone user alive" standard?

Re:Don't sue you're suppliers

[gnasher719]

Sort of like Samsung saying "how about we do away with this lawsuit and just discount price of the massive amount of memory you're buying from us?"

Samsung is a big company. The Samsung vice president of memory would tell the Samsung vice president of tablet design to f*** off if he were asked to sell memory to Apple cheaper. That's _his_ profit and _his_ bonus on the line, and he won't give that up because some other vice president had to produce a tablet design that gets them sued.

And around the country

[Identita]

Intellectual property litigation attorneys weep

Apple already tried this...

[Anonymous Coward]

Apple offered settlement deals to both Samsung *and* Motorala before enteringlitigation. Yes, even with Steve Jobs at the helm.

Perhaps you ought to check your facts before speaking ill of the dead.

Re:You tragically misunderstand patent pools.

[icebike]

Meanwhile, Motorola (and others) approached Apple and said that they wouldn't accept cash from them anyway as payment for the FRAND technology,

That's the part you made up out of whole cloth. Moto never said they wouldn't accept cash. In fact they are suing for several billion in cash.

The patent pool had FRAND pricing and collection mechanisms for two different tiers. One was the members, the other was for non-members. (Apple is not the only non-member, there are several who use various pieces of this technology and pay the non-member pricing for everything from speed cameras to water meters).

Apple refused to pay the non member pricing. Non-discriminatory doesn't mean you get it for free if you don't feel the price is ok. It means you get the same price as everybody else in your class.

Further Apple's claim of having paid via their purchase from Qualcomm in violation of the licening agreement set up by the association. is As of April 2012, the controversy centers on whether a FRAND license to a components manufacturer carries over to an equipment manufacturer incorporating the component into equipment, an issue NOT addressed in the U.S. Supreme Court's default exhaustion doctrine in Quanta v. LG Electronics.

Re:BTW, FRAND does imply Mandatory Licensing

[icebike]

You still have to pay the fees appropriate to your class. You don't get to use the patents for free and contribute neither money or patents to the pool. Its not discriminatory to expect you to pay for the patents you use.