Ban on Certain Samsung Products Appears Likely ITC Ruling

Ars Technica reports that "On Friday the ITC filed a redacted version of a remedy suggested by ITC Administrative Law Judge Thomas Pender, in which he recommended a ban be enforced against Samsung products that were found to infringe upon four Apple patents. The judge also recommended that Samsung post a bond for 88 percent of the value of its infringing mobile phones, as well as 32.5 percent of the value of infringing media players, and 37.6 percent of the value of infringing tablets." That sounds like a clear loss for Samsung, but the judge "also approved several workarounds suggested by Samsung that might permit the company to continue selling the implicated products (which include the Transform, Acclaim, Indulge and Intercept smartphones, according to Computerworld). These workarounds would sidestep infringing on Apple's four patents—which include one design patent and three technology patents." Ruling and remedy have yet to be approved by the panel whose word would make them final.

Comments

Sweet!

[Greyfox]

Now if we can ban all other products that infringe on all other patents, our transformation can be complete and we can finally move back into caves!

Re:Sweet!

[someone1234]

Either that, or just wipe all the trivial, already expired or otherwise invalid patents from the registry.

Re:Sweet!

[Anonymous Coward]

Apple will try to patent living in a cave. Failing that they will just add 'while living in a cave' to everyday things that everyone already does:

Eating - while living in a cave
Sleeping - while living in a cave
Painting on the walls - while living in a cave

Re:Sweet!

[Anonymous Coward]

The whole point of having patents in the registry is so anyone can look them up and use them once they expire.

Re:Sweet!

[Anonymous Coward]

No, no, no, it would be

• iEating - while iLiving in a iCave
• iSleeping - while iLiving in a iCave
• iPainting on the iWalls - while iLiving in a iCave

which are obviously and clearly innovative. All the one you cited have prior art.

Re:Sweet!

[AmiMoJo]

Just burn the building down. It would be like the opposite of the burning of the Library of Alexandria.

Re:Sweet!

[arekin]

iFlint and tinder; the iWheel, both now available at the iCave app store.

The legal department is more important than R&

[PolygamousRanchKid]

Maybe your R&D department can cook up some great new products. But if there is even the slightest crack anywhere in them, where a patent lawyer can jam a crowbar into . . . you might as well forget it. Your legal costs would be more than the entire R&D cost of the project.

So I wonder now how companies plan development projects these days?

Executive: "What will you need to develop this new product?"

Manager: "80 programmers, 20 management & support, . . . and . . . 1000 lawyers.

Presumption of *invalidity*

[Richard_J_N]

A large amount of the trouble with patents comes from the fact that:

* The patent office doesn't have the resources to properly validate platent claims. They basically grant anything, and assume that validity will be litigated in the courts.
* The courts tend to assume that anything granted must be valid.

So, why not change it to:

* The patent office merely registers the patent filing. It acknowledges the inventor's name, and publishes the details. but, at this stage, the patent is not deemed valid..
* When there is an actual patent suit, this is the time when the patent is carefully examined, and the question of validity can be debated in court.

Think of this as "lazy-evaluation" for patents.

Re:Presumption of *invalidity*

[Anonymous Coward]

You mean:
* Patent office merely registers useless patents
* Actual patent suit gets competition locked in courts while patent is carefully examined

(In other words, almost like now)

Re:Presumption of *invalidity*

[DiamondGeezer]

That's perfect. So while the poor inventor gets slowly bankrupted, the pirate with deep pockets takes all of the money for the invention. Since the patent is not valid, it has no value to investors who might pay the inventor a living wage.

You're a complete fucking genius.

Re:Presumption of *invalidity*

[Richard_J_N]

No.
In the (exceptionally rare) case where a patent is genuinely a good and valid one, the owner can get to prove it is valid when he goes to court.
In the common case (trivial and bogus patents), the failure of the patent-office to deny them would not hurt the defendant.

In general, however, I think that the entire patent system is worse than useless, and we should simply abolish "intellectual monopolies".

To address your point, many people have the mis-perception that patents help small inventors. This isn't true. Small inventors are far likely to be harmed by the predatory actions of a large company (which uses its own patents to crush the small guy) than they are likely to be protected. To put it another way, If I have an idea, I want the right to use it. Patents give me the right (which I don't want) to destroy your business; they also cause me the risk (which I greatly fear) that someone else wilI come along and destroy mine.

 

Re:Presumption of *invalidity*

[fredprado]

That would work if justice wasn't so damn ridiculously expensive. As it is nobody who is not a big corporation can afford the legal costs. Being right makes no difference.

Re:Presumption of *invalidity*

[Richard_J_N]

Well, my assumption of invalidity would be the same as innocent until proven guilty.

Re:Presumption of *invalidity*

[terec]

The difference is that, right now, the burden of proof is on the person challenging the patent (presumption of validity), so patents are extremely hard and expensive to overturn. The burden of proof should be on the person asking for the patent when challenged in court.

In different words, it would be "just like now", but what actually happens during the lawsuit would be very different.

Re:Presumption of *invalidity*

[Theaetetus]

A large amount of the trouble with patents comes from the fact that:

* The patent office doesn't have the resources to properly validate platent claims. They basically grant anything, and assume that validity will be litigated in the courts.

Except that 90% of patent applications are initially rejected. A far cry from "they basically grant anything".

* The courts tend to assume that anything granted must be valid.

So, why not change it to:

* The patent office merely registers the patent filing. It acknowledges the inventor's name, and publishes the details. but, at this stage, the patent is not deemed valid.. * When there is an actual patent suit, this is the time when the patent is carefully examined, and the question of validity can be debated in court.

Think of this as "lazy-evaluation" for patents.

There are registration-only systems in a few countries: Hong Kong, for example, and you can imagine how solid patent rights are there. Another one is Australia - they have a two-method patent system in which you can either get a real patent with examination and prior art search and a presumption of validity... or you can get an invention registration, as you suggest... And Slashdot simply loves to make fun of the result.

Re:Presumption of *invalidity*

[Richard_J_N]

I'm suggesting that 90% of the ones that are currently granted should be rejected.
The Australian system is actually a good idea - it means that inventors can have their rubber stamp cheaply, and that it doesn't arm the patent trolls.
But seriously, when more than half the patent suits are brought by non-practising entities (the balance tipped last year), and when patent thickets are so severe that innovators have to just ignore the patents and hope not to be sued... the system is broken.
We should just scrap the whole thing. Patents help lawyers, and sometimes as a paper-trail for VC-funding. But in reaility, the whole patent system is now parasitic upon inventors and manufacturers.

Re:Presumption of *invalidity*

[Theaetetus]

The Australian system is actually a good idea - it means that inventors can have their rubber stamp cheaply, and that it doesn't arm the patent trolls.

It's a great idea, if you don't want to actually help inventors, but just want to take money from them. Frankly, I'd rather see inventors encouraged to innovate, rather than just hitting them with fees and giving them a useless piece of paper.

But seriously, when more than half the patent suits are brought by non-practising entities (the balance tipped last year), and when patent thickets are so severe that innovators have to just ignore the patents and hope not to be sued... the system is broken.

In what way is that broken? I understand that you hate trolls, but to imply that it's their non-practicing status that's the bad part, rather than their extortionate methods, or forum shopping, or the like, is just insane. Plus, what about other non-practicing entities, like Cornell, MIT, Johns Hopkins, Cal Tech, etc.? Let's focus on the real problems like I noted rather than latching on to some irrelevant characteristic that doesn't actually affect the legitimacy of their suits.

We should just scrap the whole thing. Patents help lawyers, and sometimes as a paper-trail for VC-funding. But in reaility, the whole patent system is now parasitic upon inventors and manufacturers.

All litigation helps lawyers... why aren't you calling for contract law, tort law, bankruptcy law, etc. to be scrapped too? Again, it seems like you're ignoring legitimate problems with the system and instead latching on to irrelevancies - a subset of NPEs are patent trolls, so all NPEs are bad and the system should be scrapped; lawyers make money, so therefore the system is bad and should be scrapped. Without (i) a clear understanding of what the problems are, and (ii) a suggestion for how to solve them, your cries of "let's abolish all legal systems" is going to fall on deaf ears.

Re:Presumption of *invalidity*

[Richard_J_N]

Patents are bad in practice, but they are wrong in theory too. The philosohpical problems are: independent invention, and the shoulders of giants.

* If you and I independently solve the same problem and create a product, then we should both have the right to make our businesses from it. Just because I filed first doesn't mean that you stole my idea, nor should it give me the right to crush your business.

* If I invent something, I maybe did 0.001% of the work. Everything else was drawn from the public domain, my education, and from the scientific community. That invention isn't truly "mine", and it's certainly not "mine and mine alone".

Thomas Jefferson was right when he said:
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. "

Aside: my point about lawyers here was that patents help *only* lawyers. In contract law, the lawyers help ordinary people to do what they want. Patent lawyers are the only people who benefit from, promote, and strengthen the patent system - practically every engineer wishes the system would just go away.

Re:Presumption of *invalidity*

[Theaetetus]

Patents are bad in practice, but they are wrong in theory too. The philosohpical problems are: independent invention, and the shoulders of giants.

* If you and I independently solve the same problem and create a product, then we should both have the right to make our businesses from it. Just because I filed first doesn't mean that you stole my idea, nor should it give me the right to crush your business.

On the contrary - as Jefferson stated, monopolies are an embarrassment to society, granted only because the of the great benefit to society gained by the exchange. Specifically, we grant patent rights not as a reward for some invention, but as a payment grudgingly made in exchange for public disclosure. If you and I independently solve the same problem and I publish it first, either voluntarily or in exchange for a patent, then when you later come along and do the same thing, how does society benefit? You aren't adding anything to the public domain, because I've already done that. Why should society give you anything or allow you to benefit from the embarrassment of a monopoly, when you've given nothing to society in exchange?

* If I invent something, I maybe did 0.001% of the work. Everything else was drawn from the public domain, my education, and from the scientific community. That invention isn't truly "mine", and it's certainly not "mine and mine alone".

Improvements are inventions, too. It's that "better" part of "build a better mousetrap, and the world will beat a path to your door."

Thomas Jefferson was right when he said: "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. "

Thomas Jefferson was also right when, in the very same letter, he said "Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody."
See, Thomas Jefferson's point wasn't that patents shouldn't exist - he was the first Patent Examiner after all, wrote the Patent Act, and explains in that letter how patents are to the benefit of society - but that patents shouldn't be considered property in the same way as real property: they should not last forever, to be passed from parent to child in an aristocratic family, but are a grant to encourage invention.

Aside: my point about lawyers here was that patents help *only* lawyers. In contract law, the lawyers help ordinary people to do what they want. Patent lawyers are the only people who benefit from, promote, and strengthen the patent system - practically every engineer wishes the system would just go away.

Au contraire, every patent lawyer is an engineer (except for the ones that are biologists or ch

Re:Presumption of *invalidity*

[Richard_J_N]

If you and I independently solve the same problem and I publish it first, either voluntarily or in exchange for a patent, then when you later come along and do the same thing, how does society benefit? You aren't adding anything to the public domain, because I've already done that. Why should society give you anything or allow you to benefit from the embarrassment of a monopoly, when you've given nothing to society in exchange?

Well, that might be true, excepting that no engineers ever read patents (they'd get hit for triple damages). Patent applications are usually phrased in a way which makes their coverage broad, and their utility as documentation low. Also, usually multiple people solve the problem at the same time. The one who gets the patent is frequently the least "deserving". [The "not obvious to one skilled in the art" test should kill most of the patents, but it doesn't].

Improvements are inventions, too. It's that "better" part of "build a better mousetrap, and the world will beat a path to your door."

Of course. You took my mousetrap and improved it...so you can sell yours. I can then improve your mousetrap (and you shouldn't be able to stop me selling it, though you should be able to improve upon it again).

In fact, with tech companies, frequently their only real value is in their intellectual property.

Which is a major problem. VC's hugely over-value worthless stuff. And when a company like Kodak hits the wall, its patents become a source of severe intellectual pollution: Google etc pay billions to mop them up and take them out of circulation.

And the obviousness test

[Anonymous Coward]

Supreme court ruled that to be non-obvious and invention had to be more than the sum of its parts. So pinch zoom on a handset isn't new just because its on a handset. It existed before on a computer and a handset is just a computer, so what's the invention? Calling it a handset instead of a computer???

IMHO the Obviousness test used today is also to blame.

Apple should not have been granted those patents on other people inventions. They did not make the first rounded rectangle touch computer, they did not invent the camera icon to represent a camera. The assembly of those two items does not a new invention make.

Patent should be declined by default, but also the 'more than the sum of the parts' test was sound thinking too.

Re:And the obviousness test

[Xest]

I was watching a show on TV here in the UK last night, which was going on about some guy who invented kites with two strings so you could better control them in about 1979 and was being hailed for his excellent work in coming up with this simple but magnificent idea that gave greater control over them.

Only the problem is in parts of Asia like Afghanistan, and China they've been doing this at least 100 years prior, but likely much more than that.

I guess the "inventor" of a product in this day and age is who is best able to rewrite history, rather than who actually originally came up with the idea.

This is insane

[HangingChad]

The judge also recommended that Samsung post a bond for 88 percent of the value of its infringing mobile phones, as well as 32.5 percent of the value of infringing media players, and 37.6 percent of the value of infringing tablets.

Software patents are completely out hand. This is not what the patent system was intended to do, this is madness.

Re:This is insane

[IgnoramusMaximus]

This is not what the patent system was intended to do, this is madness.

On the contrary, this is precisely the intended effect i.e. elevation of power and profits of the only group that really matters in this: the lawyers. You will take note that irrespective of what comes out of this (Apple loses, Samsung loses, whatever) the lawyers (and bankers - all that money has to get deposited somewhere - also just think of the magnitude of "transaction fees") get their money. A huge pile of money.

In a society run by lawyers the only people who really count are lawyers. Every other activity (such as producing something actually useful) must somehow benefit the true power holders. Thus "rules" are made, which from your perspective might appear "insane", which advertise themselves as "justice" or "promotion of this or that noble goal" to make them defensible to and palatable by the plebs, but simply say "you shall suck a lawyer's dick" once you decipher all the implications of the lawyerly priesthood's "legalise" code in which these "rules" were written.

And since most Western societies are overrun with a whole pyramid of classes of parasites such as lawyers or "financial industry" creatures the pooch is pretty much screwed - at least until the next Great Fuckup (probably an economic collapse the way things are going but its anyone's guess really).

Re:People should be happy about this . . .

[flimflammer]

You completely invalidate any point you might have when you use retarded phrases like "samscum."

Truly, it makes you look like an idiot.

Racism

[Mister Liberty]

The US is just terrified by the Far East economic boom.
It will continue, it is reactionary, and it's also a losing strategy.
US, cuddle your Apple baby and cry.

Maybe it's just me...

[MikeRT]

But as a conservative this just smacks of central planning and the old adage of picking the winners and losers. I have never seen any explanation of why Samsung should be punished like this instead of everyone because they all infringe on each other. Yet somehow the rules don't seem to be getting applied even remotely fairly...

Really, we need to jettison the entire punishment and start over if we are going to have patents. Keep the products on the market, but require that the company keep an accurate tally of how much it sells and regulaly cut a check for the fees on a quarterly basis. None of this ban the from the market crap unless it is such a clone of the competing product that it is a hair's distance from a trademark violation.

Re:Maybe it's just me...

[stenvar]

No, this smacks of protectionism, something both conservatives and liberals are fond of; remember, this ruling comes from the ITC.

One products competing with Apple will be banned.

[boorack]

Look like they have succesfully bribed ITC to block devices competing with them and drop cases against them (eg. Motorola case). And I suspect that whole Wall-Street estabulshitment is backing them - money junkies and banksters are too much invested in Apple to let any competition threaten Apple's obscenic margins. This is scenario I'm worried about for some time: monopolistic cash cow artificially created by Wall Street crooks. Openness coming with Android is what they're fighting against, not Samsung. Add it to long list of Wall Street crimes they've done over all those years: internet bubble, housing bubble, derivatives, bailouts, market rigging (see LIBOR scandal), drug money laundering (see HSBC or Wachovia, now Citi). It's the whole system stacked against 'we, the people'. If you're uncomfortable enough to not feed Apple with your money, you should also consider NOT feeding other Wall Street firms whenever possible. Along with Apple, Microsoft, Coca Cola, Monsanto, Wallmart or Goldman Sachs they're all parts of one big criminal cartel 'we the people' should fight off so that in coming years you can tell your children that at least you've tried...

Patents are desctructive

[RenHoek]

I'm glad the patent wars are being fought out in the telecom industry, instead say the computer hardware or software industry, in hopes that people will see the folly of this idiotic and in the end destructive set of laws concerning patents.

But I have no illusion that if this is not stopped, it will spill over into every other aspect of our lives, from patents in software (which is already ramping up) to foods, cars, books and more. The damage will be impressive.

Re:People should be happy about this . . .

[andydread]

You sir are a fucking unadulterated moron. Your advocacy for suing people over trivial shit that apple did not invent like pinch-to-zooom is a pathetic attempt at shilling for Dear Leader Steve Job il. My god what a goon this clown is.

ITC is out of control

[stenvar]

Apart from the problems with the patent system, the ITC is out of control. The ITC is part of the executive branch and has no business adjudicating the validity of patents. There needs to be a serious house cleaning at the federal level; unfortunately, the guy to do it didn't even get invited to the debates.

Re:ITC is out of control

[Dragonslicer]

The ITC is part of the executive branch and has no business adjudicating the validity of patents.

1) What branch do you think the Patent Office is part of?

2) The ITC can't actually invalidate a patent, they can only "find a patent invalid" and refuse to grant an injunction based on that patent. Even after an ITC finding of invalidity, the patent can still be used in federal court, though the defendant will almost certainly bring up the ITC ruling to try to convince the judge to invalidate the patent.

Re:ITC is out of control

[stenvar]

1) What branch do you think the Patent Office is part of?

Do you have trouble understanding the difference between granting a patent and challenging a patent?

The ITC can't actually invalidate a patent, they can only "find a patent invalid"

My, you are fond of stating the obvious. You are also splitting hairs.

The ITC makes decisions on the validity of patents and imposes what effectively amounts to remedies and penalties. The fact that they can be challenged in federal court does not change the fact that they are acting like a court themselves. But unlike a court, they aren't bound by the rules by which normal legal proceedings have to be conducted.

Re:ITC is out of control

[Dragonslicer]

1) What branch do you think the Patent Office is part of?

Do you have trouble understanding the difference between granting a patent and challenging a patent?

Then by that reasoning, the Patent Office shouldn't be able to invalidate a previously granted patent, and yet they can.

The ITC can't actually invalidate a patent, they can only "find a patent invalid"

My, you are fond of stating the obvious. You are also splitting hairs.

The ITC makes decisions on the validity of patents and imposes what effectively amounts to remedies and penalties. The fact that they can be challenged in federal court does not change the fact that they are acting like a court themselves. But unlike a court, they aren't bound by the rules by which normal legal proceedings have to be conducted.

I assume you already know this, but for anyone else that might be reading, the only penalty that the ITC can hand down is to block the import of illegally infringing products, which is arguably part of enforcing importation laws and thus the responsibility of the Executive. And while the ITC does not use the exact same rules as a federal court, they do have their own set of similar rules. As a side note, every district court has its own rules anyway, so it's not like there's a single standard for every federal court.

Whether or not you think the ITC is qualified to rule on technical patents and whether or not you think the import bans are justifiable are both matters of debate, and there are reasonable arguments to be made against both points. However, the argument that the ITC shouldn't be allowed to rule on the validity of patents just because they are part of the Executive branch makes no sense at all.

Re:ITC is out of control

[stenvar]

Then by that reasoning, the Patent Office shouldn't be able to invalidate a previously granted patent, and yet they can.

No, not at all. Reversing an administrative decision and making a decision in a dispute between two parties are two entirely different things.

However, the argument that the ITC shouldn't be allowed to rule on the validity of patents just because they are part of the Executive branch makes no sense at all.

It may not make sense to you. But we have a dispute between two parties, and a decision is worth billions of dollars. That is not the kind of thing that should be decided administratively, it is something that should be decided in the courts, using proper legal processes.

Re:ITC is out of control

[Dragonslicer]

As far as infringement goes, you have a good point. I'm not saying that I agree or disagree with it, but it is a reasonable argument. Invalidity, though, is in theory completely independent of what's being accused of infringement. An ITC finding of invalidity is conceptually no different than if the defendant submitted a request for reexamination with the Patent Office, which can and does often happen.

Ridiculous.

[JustNiz]

None of the Apple patents are inventive, creative or novel. They are all freaking obvious and all probably have a large amount of prior art.
The fact that defense of such lame patents can get this far at all is a travesty.

Re:Ridiculous.

[Theaetetus]

None of the Apple patents are inventive, creative or novel. They are all freaking obvious and all probably have a large amount of prior art.

Then I'm sure you have some citations to said invalidating prior art? Or is this just one of those gut-feeling things?

Re:Ridiculous.

[walterbyrd]

> There was no iPhone-like phone before the iPhone.

Wrong. Apple copied every idea. Do some research.

Re:Ridiculous.

[walterbyrd]

6 Ways Apple's iOS 5 Just Copied Android

http://www.businessinsider.com/how-ios-5-copied-android-2011-6?op=1

Re:Ridiculous.

[Theaetetus]

6 Ways Apple's iOS 5 Just Copied Android

http://www.businessinsider.com/how-ios-5-copied-android-2011-6?op=1

... And? Sorry, we're talking about some patents here, not whether iOS uses features from Android or even vice versa. Maybe you're in the wrong thread?

Wang called...

[Kupfernigk]

They want to sue you for trade mark abuse.

Re:Like There Were No Rectangles With Round Corner

[AddisonW]

That's right righteous Apple soldiers!

Mod down the unbelievers!

If Galaxy is a copy, then so is iPhone.

[walterbyrd]

iPhone was not the first smart phone, far from it. Apple copied every idea.

When you post the same comment four times...

[Theaetetus]

... in the same thread, it's probably time for the redundant tag.

Re:One products competing with Apple will be banne

[rtb61]

When you have nothing worthwhile to contribute you resort to a baseless attack. Let me guess you work for Apple marketing and patents ;P.

Re:One products competing with Apple will be banne

[sdsucks]

Sure, and Google & Samsung are on the "peoples" side, eh? Maybe your argument would make a little more sense if it wasn't obviously biased drivel.

Re:One products competing with Apple will be banne

[the_B0fh]

Err, it's more like how the fuck did he link genetically modified organisms, drug money, libor and housing bubble to iPhone versus Samsung Android phones?!

If you're playing that game, then *EVERYTHING* is linked, and then there's nothing left to discuss.

If you don't see that, then what kind of crack are *you* smoking?