But according to the latest judges, the patents Myriad holds do not reiterate these laws. In the courtâ(TM)s decision, Judge Alan Lourie writes: âoeEach of the claimed molecules represents a nonnaturally occurring composition of matter."
Like hell they are. This judge needs to go back to HS biology.
Without taking a position on whether these particular patents are good or bad, the patents claim only the isolated DNA sequence, which doesn't naturally occur in nature. A really terrible analogy would be claiming a finger, in isolation. In nature, it's always part of a hand, so the isolated "finger" doesn't exist naturally.
This is a really terrible analogy, because the isolated DNA is actually more manipulated than just severing a finger - apparently, they have to do a lot of work modifying the molecule to keep the isolated form from falling apart without its neighbors to bind it. I guess something closer would be if someone claimed an "atom" of pure protons, somehow keeping it from flying apart due to magnetic forces.
Anyway, the result is that someone with cancer doesn't infringe the patent (nor would they be prior art that anticipates the patent) because while they have the BRCA1 gene, they don't have it isolated from the rest of their DNA.
If Samsung can find all these examples of prior art, how is it that Apple was granted patents in the first place? These are hardly the only examples of Apple being given patents on things that were obviously done by others well before they "innovated" them.
As my father-in-law was a patent clerk he said they stopped checking into prior art when he left in the 90s and they seemed to rubber stamp multiple things. He tended to take pride in searching for prior art as he didn't want a company to get patents on existing things. This was lost as they brought in managers who went with quotas rather then actually vetting everything thoroughly.
Around 90% of applications are rejected in the first office action, so if the USPTO is rubber stamping them, it's not with an "ALLOWED" stamp.
but how much time was taken away by the early termination of the petition?
I'm too lazy to dig up wherever I read it, maybe it was a comment on hacker news, but it sounded like it had about another week to go before expiration.
What would be the effect of restricting a patent holder from initiating litigation to infringements made prior to the acquisition of the patent?
"Oh, hai, small inventor and patent holder. I'm a Big Corporation. I'm just going to use your idea, and if you ask me for license fees, I'll tell you to fark yourself. What are you going to do... sue me? Bwaahahaha! I'll bury you in documents and motions until you're bankrupt and beg me to let you drop the suit... I mean, where are you going to get the quarter-million dollars it'll take to litigate this?
"Back in the day, of course, you could have sold your patent to a holding company who has millions in the bank to pay for this litigation. Then, I'd be really scared, because they're more than willing to fight me all the way to the Supreme Court if necessary, and I could be on the hook for hundreds of millions of dollars. You'd get a percentage of that payout with no risk on your part. That might make me actually want to buy your patent or get a license from you.
"But not anymore! Thanks to the Dmomo Screwing Small Inventors Act of 2012, I can just keep infringing your patent. If you sell it to someone who might sue me, damages reset! So, all I have to do is imply that I'll stop infringing within a few months and their potential damages would be less than that quarter million to sue me, so it's an uncomfortable risk for them, and they'll never buy your patent!
"It's a brilliant Catch-22! Thanks to Sen. Dmomo, you can't sue me, and you can't ever find a buyer who would sue me!"
Every aspect of the design shown is part of the patent claim, including the specific curvature of the corners, the size of the bezel, the symmetrical placement of the screen within the border, the edge curvature, etc. Change any single one of those, and you don't infringe, by definition.
The point is that the entire design should not be patentable because it is not novel enough, not new enough, very similar to existing products and generally quite obvious. In fact Samsung released photo frames that looked very much like the iPad, and simply specifying some relatively minor details is not enough to warrant a patent.
Not so... The patent claims a particular three-dimensional shape, and the Samsung photo frames were significantly different on the sides and back.
Patents are supposed to protect new ideas and innovation. Deciding that the corners should have a radius of 11mm instead of 10mm isn't new or innovative.
Yes, and if there was something exactly the same before, but with 10mm corners, you'd be right. But there wasn't.
Besides, the Galaxy S doesn't have the same radius corners as the iPhone.
Close enough that a reasonable person (or Samsung's lawyers) can't tell the difference, apparently.
Obviously the screen is symmetrical within the borders because that is the obvious, default way to align it.
But there are other ways to do it. In fact, take that Kubrick tablet thing in 2001 - it had an asymmetrical bezel.
You can't patent the default obvious choices, even as part of a larger design.
Actually, you've got that backwards - you can patent a larger design, even if some parts of it are "obvious choices", provided the larger design as a whole is novel and nonobvious. The "choices" aren't patented, the "larger design" is.
And actually Apple are claiming infringement of other really obvious patents unrelated to the physical design as well, such as scrolling at the same speed you move your finger.
If it's so obvious, then find some prior art. Samsung would probably pay you a bounty.
You claimed there were scribbles. If that was just hyperbole, that's fine, but you might want to be a bit clearer next time.
The Galaxy Tab doesn't match those drawings exactly at all.
Which - it doesn't match "exactly" or it doesn't match "at all"? I'd agree with the former, but not the latter.
It's angles and corners have different measurements
The test is whether those differences would be perceived by a reasonable person. For example, if the corner radius in the patent is x, equal to length/y of a side, and the Tab has a corner radius of x.001, then that may not match "exactly", but it's enough that a reasonable viewer might say when asked to tell them apart, for example, "Not at this distance your honor."
So basically the whole suit is junk.
This is more of your hyperbole from above, right? I think I'm getting your style.
Also, trying to patent putting a screen in the middle of a bezel is hilarious. Every TV, computer monitor and tablet has always done that. But, no, that's just ingenuus 'invention' by Apple,.
Good thing Apple never tried to patent "putting a screen in the middle of a bezel" then.
You're saying the Prada shouldn't count as an iPhone-like design because it also included a keyboard. And you're suggesting the keyboard played into them winning that award.
No, let's try this again using actual quotations rather than "you're saying":
The Prada was a slide phone with a hard keyboard [dailymobile.net]. That's a very different design.
Do you disagree with either of those sentences?
You're being asinine and frankly it isn't worth arguing over, so let me revise my original statement.
You're the one who is paraphrasing my post so as to put words in my mouth that I've explicitly disagreed with, and is now name calling. Frankly, unless you raise your level of both politeness and discourse, I'm not going to waste time with you.
Except their scribblings have none of the exact details that you claim they do. They are nothing but rough drawings.
I'm not sure what you're looking at, then. I'm talking about the design patents in this case, such as this one. There are no "scribblings" or "rough drawings" anywhere in there.
Phones had sliding keyboards before the Prada. You're suggesting a common feature before the Prada led it to win a design award, and not the new design of a large touchscreen replacing physical buttons?
No, and I'm not sure why you keep focusing on individual components rather than the overall design. It's like when a book wins an award... the reviewers don't give out a National Book Award because of the great dialog on page 47, or the description of a hat on page 210. The Prada won a design award for the design of the Prada, not for "a sliding keyboard" or "a touchscreen". Does that make it clearer?
When people say "look at all phones post-iPhone to see that they all copied Apple" they're generally referring to...
Sure, but that's why "people" who "generally refer to" things aren't the law.
The Prada won a design award because of the large touchscreen and soft-buttons replacing traditional physical buttons.
[Citation needed]. I believe it won a design award for its design. If you have some reference showing that it actually won its design award for only a few features and not for the overall design, then by all means...?
Slight problem: the Prada was referenced in the '677 patent [uspto.gov]. I.e. The patent was awarded with full awareness of the LG Prada phone, meaning that the LG phone must have been different enough so as not to invalidate the claims of Apple's design patent.
So that would mean that anybody could make an exact copy of the LG Prada phone, and Apple could not sue them (well of course you can sue for anything, but they couldn't possibly win).
Yes, exactly. But bear in mind that the Prada was actually a slide phone with a hard keyboard.
As I understand it, the fact that Samsung is denied the right to present the evidence is because their legal team was so dumb fuck stupid not to present the evidence in the legal phase where evidence is supposed to be presented. Call it a technicality if you must. Nevertheless, the judge is 100% right to suppress said evidence on the grounds it wasn't presented on time.
Legal proceedings are very precise. Samsung lawyers seems to be very stupid on that one.
There will be an appeal anyways, so who cares?
Agreed on the first part, but the appeal can only address legal issues, not factual ones. The factual record gets established at trial, so it does matter. The appeals court could always remand and call for a re-trial, but that's pretty rare.
But LG won a design award in 2005 for what Apple claims they should have sole ownership of, when they didn't demo it publicly or release it until 2006.
Except that is exactly what their design patent is asserting is their 'invention'.
Claims
We claim the ornamental design for an electronic device, substantially as shown and described.
And their drawings are just scribblings of a rectangular form factor with rounded corners and a bezel.
Not "just". Design patents are actually very narrow: the design claimed is not just "rounded corners" or just "a bezel" or just "a rectangular form factor", but all of those things, in combination... and even in more depth. Every aspect of the design shown is part of the patent claim, including the specific curvature of the corners, the size of the bezel, the symmetrical placement of the screen within the border, the edge curvature, etc. Change any single one of those, and you don't infringe, by definition.
They're not "scribblings" - you could actually take a ruler and protractor to them if necessary.
Patents applications are only made public by the patent office after they are granted which may take years to happen. Never heard of submarine patents?
That's absolutely true... before 1997. Welcome to the future, my friend! Applications are now published after 18 months.
Read: "in the discovery stage", the discovery stage being the time during which both parties can enter exhibits into evidence. The only real "too late" in discover is when it's over, though a judge can, as Koh did in this case, disallow evidence if it is brought in near the end of discovery.
I believe you're reading poor journalism as if it's factual. First, it wasn't actually Koh that disallowed the evidence, but Judge Grewal, the magistrate judge who presided over the discovery phase. Second, the discovery period was over... It wasn't merely "near the end", but expired. All of the documents are available here.
However, this is only supposed to be done if it is wholely new evidence, completely unknown to the other party, which the other party would require time to investigate. Since Samsung's filing was in response to Apple's filing regarding the F700, Apple was clearly aware of the F700 and this was not wholely new evidence, therefore it should not have been barred.
Nope, the internal documents regarding the design of the F700 were entirely new. That Apple was aware of the existence of the phone is irrelevant, if they were unaware of the internal documents. Plus, it still fails to answer the question of why didn't Samsung release these during the discovery phase?
Thanks for the correction.
What Samsung is trying to claim is that they independently designed the F700 without copying Apple's design... but they can't use their documentary evidence, because they withheld it from discovery.
Its not what Apple is trying to claim. Apple is trying to claim that Samsun dependently designed the F700 they are alleging copying.
Actually, no... Here's the trial motions. The most recent is Apple's response to Quinn's declaration and motion for sanctions. Apparently, the only thing they claimed about the F700 was that it was a slide phone.
Now they know that to be false because of the dates. As far as I understand it the dates make Apple's claim impossible and Samsung's evidence shows this. Once Apple claims something they know to be false based on the excluded evidence that opens the door. Apple cannot freely perjure because Samsung got sanctioned. I think at this point, Apple has opened the door. Because of Samsung's late filling Apple had the right to ignore the F700 entirely. They don't have the right to lie about the dates various events occurred.
However, they can certainly describe the F700 factually, without discussing any of the design dates.
Now if you are right and the F700 were in fact late enough that it could have been after the images of the iPhone then this whole gets tricky but I suspect the result is the same. Because Apple is still alleging events that occurred inside of Samsung i.e. they are making positive claims that Samsung employees committed torts which evidence shows they did not commit. I think they have to make a positive case for copying and that's going to be impossible not to trip over Samsung's internal documents. So again I don't see how to have the kind of one sided sanction you are pushing for without holding Apple to a very high standard.
There is two ways to look at this. F700 is either fundamental or not. If Quinn is telling the truth and the entire defense is going to based on that both Apple and Samsung were copying Sony, I'm sorry Koh cannot exclude the core of entire defense that's simply too harsh a sanction. We do not sanction defendants for minor errors without automatically losing cases.
Well, except that if their entire defense is based on that, then they shouldn't have withheld it during discovery. The rules are impartial and require both parties to disclose evidence in a timely manner... Samsung doesn't get a pass just because they'd lose.
Similarly if the F700 is key to Apple's case that Samsung was copying then everything related to it is important. If it is a side issue than Apple should have the right to decide whether to just avoid it, or lose the sanction.
So I disagree pretty strongly. Once Apple makes claims about anything that happened inside Samsung the evidence of what really happened comes in. Regardless of what Samsung did during discovery. Samsung's misbehavior at discovery never gives Apple license to perjure or mislead the court.
No, I agree, Apple can't make any misleading or factually incorrect statements... But they don't have to ignore the existence of the F700 completely, particularly when it was disclosed during discovery. It was only the design documents that were withheld, so it's only those documents that are excluded.
The presiding judge of the case, Lucy Koh, rejected Samsung’s multiple motions on the matter, because they were filed too late in the discovery stage (the stage when the two parties in a trial submit their evidence).
You said "Samsung countered by attempting to introduce the barred documents shortly after, still within the required timeframe.."
Your citation here is that Samsung filed motions to introduce the barred documents "too late."
Does "too late" mean something different to you?
There is a doctrine called subornation of perjury. Lawyers cannot present a case they know to be false. Once they have indicated that F700 came after the iPad if that is false that's a perjury. They cannot make filings that the F700 came after, if thats false. There is no such thing as a one sided exclusion. There are a series of true statements about the F700 that can be entered into evidence or not entered. Apple has control there. Samsung having missed a deadline does not entitle Apple to enter false statements about the F700 into evidence.
And that is what Koh is permitting in Samsung's view.
(iPhone, btw, not iPad)
There's no intimation that any perjury is going on or false statements are being entered, so I don't know where you're getting that. The F700 came after Apple's original designs for the iPhone (it even post-dates their original patent applications that go back to 2006, I believe), so it's not false to say that it did.
What Samsung is trying to claim is that they independently designed the F700 without copying Apple's design... but they can't use their documentary evidence, because they withheld it from discovery.
It's excellend grounds. Once something is introduced as evidence, it's fair game for both sides to do with it what they will. Samsung missed a deadline to introduce documents relating to the conception of the F700 and was barred from introducing the documents relating to the conception of the F700, and rightly so;
FTFY. If Apple introduces those documents, then it's fair game for Samsung to discuss them.
however, once Apple introduced it, it became fair game for Samsung to discuss. They're not being allowed due process with reegard to the evidence presented by their opponent. That's clear judicial bias, the strongest grounds an appeal can stand on.
Nope, there's no evidence of bias here, as the judge is following Rule 37 exactly:
If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
They can certainly argue about the allegation being false, as well as ask questions of witnesses, but the specific documents? Those documents are inadmissible unless Apple brings them up
Ok, just so I have this straight.
Apple brought up the charge that the F700 is a copy of the iPhone.
Samsung knows this is not true and has the documentation to prove it.
What you are saying though is that yes, Samsung can claim that Apple is full of shit, but Samsung cannot present evidence of Apple being full of shit unless Apple specifically brings up the evidence of them being full of shit?
Yes, with one addition:
Samsung had these documents in their hands the entire time, knowing that time was ticking down for them to produce them. They decided not to. They waived any opportunity to raise it.
So hang on. Apple is allowed to bring, after discovery, the existence of the F700 into evidence but Samsung is NOT allowed to bring the conception and design?
Yes, because Samsung had documents about the conception and design in their possession and never brought them up.
Slashdot Mirror
I guess something closer would be if someone claimed an "atom" of pure protons, somehow keeping it from flying apart due to magnetic forces.
Such a thing should still not be patentable, period. A machine that would let you produce such a thing, sure. The atom itself, no way in hell.
Why not? The patent act explicitly allows "new and useful... compositions of matter," so why wouldn't it qualify?
But according to the latest judges, the patents Myriad holds do not reiterate these laws. In the courtâ(TM)s decision, Judge Alan Lourie writes: âoeEach of the claimed molecules represents a nonnaturally occurring composition of matter."
Like hell they are. This judge needs to go back to HS biology.
Without taking a position on whether these particular patents are good or bad, the patents claim only the isolated DNA sequence, which doesn't naturally occur in nature. A really terrible analogy would be claiming a finger, in isolation. In nature, it's always part of a hand, so the isolated "finger" doesn't exist naturally.
This is a really terrible analogy, because the isolated DNA is actually more manipulated than just severing a finger - apparently, they have to do a lot of work modifying the molecule to keep the isolated form from falling apart without its neighbors to bind it. I guess something closer would be if someone claimed an "atom" of pure protons, somehow keeping it from flying apart due to magnetic forces.
Anyway, the result is that someone with cancer doesn't infringe the patent (nor would they be prior art that anticipates the patent) because while they have the BRCA1 gene, they don't have it isolated from the rest of their DNA.
If Samsung can find all these examples of prior art, how is it that Apple was granted patents in the first place? These are hardly the only examples of Apple being given patents on things that were obviously done by others well before they "innovated" them.
As my father-in-law was a patent clerk he said they stopped checking into prior art when he left in the 90s and they seemed to rubber stamp multiple things. He tended to take pride in searching for prior art as he didn't want a company to get patents on existing things. This was lost as they brought in managers who went with quotas rather then actually vetting everything thoroughly.
Around 90% of applications are rejected in the first office action, so if the USPTO is rubber stamping them, it's not with an "ALLOWED" stamp.
but how much time was taken away by the early termination of the petition?
I'm too lazy to dig up wherever I read it, maybe it was a comment on hacker news, but it sounded like it had about another week to go before expiration.
It expired on the 9th. See, e.g. Bruce Schneier's post a week ago, or the Fark thread from the 8th saying 'it expires tomorrow'.
What would be the effect of restricting a patent holder from initiating litigation to infringements made prior to the acquisition of the patent?
"Oh, hai, small inventor and patent holder. I'm a Big Corporation. I'm just going to use your idea, and if you ask me for license fees, I'll tell you to fark yourself. What are you going to do... sue me? Bwaahahaha! I'll bury you in documents and motions until you're bankrupt and beg me to let you drop the suit... I mean, where are you going to get the quarter-million dollars it'll take to litigate this?
"Back in the day, of course, you could have sold your patent to a holding company who has millions in the bank to pay for this litigation. Then, I'd be really scared, because they're more than willing to fight me all the way to the Supreme Court if necessary, and I could be on the hook for hundreds of millions of dollars. You'd get a percentage of that payout with no risk on your part. That might make me actually want to buy your patent or get a license from you.
"But not anymore! Thanks to the Dmomo Screwing Small Inventors Act of 2012, I can just keep infringing your patent. If you sell it to someone who might sue me, damages reset! So, all I have to do is imply that I'll stop infringing within a few months and their potential damages would be less than that quarter million to sue me, so it's an uncomfortable risk for them, and they'll never buy your patent!
"It's a brilliant Catch-22! Thanks to Sen. Dmomo, you can't sue me, and you can't ever find a buyer who would sue me!"
Every aspect of the design shown is part of the patent claim, including the specific curvature of the corners, the size of the bezel, the symmetrical placement of the screen within the border, the edge curvature, etc. Change any single one of those, and you don't infringe, by definition.
The point is that the entire design should not be patentable because it is not novel enough, not new enough, very similar to existing products and generally quite obvious. In fact Samsung released photo frames that looked very much like the iPad, and simply specifying some relatively minor details is not enough to warrant a patent.
Not so... The patent claims a particular three-dimensional shape, and the Samsung photo frames were significantly different on the sides and back.
Patents are supposed to protect new ideas and innovation. Deciding that the corners should have a radius of 11mm instead of 10mm isn't new or innovative.
Yes, and if there was something exactly the same before, but with 10mm corners, you'd be right. But there wasn't.
Besides, the Galaxy S doesn't have the same radius corners as the iPhone.
Close enough that a reasonable person (or Samsung's lawyers) can't tell the difference, apparently.
Obviously the screen is symmetrical within the borders because that is the obvious, default way to align it.
But there are other ways to do it. In fact, take that Kubrick tablet thing in 2001 - it had an asymmetrical bezel.
You can't patent the default obvious choices, even as part of a larger design.
Actually, you've got that backwards - you can patent a larger design, even if some parts of it are "obvious choices", provided the larger design as a whole is novel and nonobvious. The "choices" aren't patented, the "larger design" is.
And actually Apple are claiming infringement of other really obvious patents unrelated to the physical design as well, such as scrolling at the same speed you move your finger.
If it's so obvious, then find some prior art. Samsung would probably pay you a bounty.
So am I.
You claimed there were scribbles. If that was just hyperbole, that's fine, but you might want to be a bit clearer next time.
The Galaxy Tab doesn't match those drawings exactly at all.
Which - it doesn't match "exactly" or it doesn't match "at all"? I'd agree with the former, but not the latter.
It's angles and corners have different measurements
The test is whether those differences would be perceived by a reasonable person. For example, if the corner radius in the patent is x, equal to length/y of a side, and the Tab has a corner radius of x.001, then that may not match "exactly", but it's enough that a reasonable viewer might say when asked to tell them apart, for example, "Not at this distance your honor."
So basically the whole suit is junk.
This is more of your hyperbole from above, right? I think I'm getting your style.
Also, trying to patent putting a screen in the middle of a bezel is hilarious. Every TV, computer monitor and tablet has always done that. But, no, that's just ingenuus 'invention' by Apple,.
Good thing Apple never tried to patent "putting a screen in the middle of a bezel" then.
Let's try this again.
You're saying the Prada shouldn't count as an iPhone-like design because it also included a keyboard. And you're suggesting the keyboard played into them winning that award.
No, let's try this again using actual quotations rather than "you're saying":
The Prada was a slide phone with a hard keyboard [dailymobile.net]. That's a very different design.
Do you disagree with either of those sentences?
You're being asinine and frankly it isn't worth arguing over, so let me revise my original statement.
You're the one who is paraphrasing my post so as to put words in my mouth that I've explicitly disagreed with, and is now name calling. Frankly, unless you raise your level of both politeness and discourse, I'm not going to waste time with you.
Except their scribblings have none of the exact details that you claim they do. They are nothing but rough drawings.
I'm not sure what you're looking at, then. I'm talking about the design patents in this case, such as this one. There are no "scribblings" or "rough drawings" anywhere in there.
Phones had sliding keyboards before the Prada. You're suggesting a common feature before the Prada led it to win a design award, and not the new design of a large touchscreen replacing physical buttons?
No, and I'm not sure why you keep focusing on individual components rather than the overall design. It's like when a book wins an award... the reviewers don't give out a National Book Award because of the great dialog on page 47, or the description of a hat on page 210. The Prada won a design award for the design of the Prada, not for "a sliding keyboard" or "a touchscreen". Does that make it clearer?
When people say "look at all phones post-iPhone to see that they all copied Apple" they're generally referring to...
Sure, but that's why "people" who "generally refer to" things aren't the law.
The Prada won a design award because of the large touchscreen and soft-buttons replacing traditional physical buttons.
[Citation needed]. I believe it won a design award for its design. If you have some reference showing that it actually won its design award for only a few features and not for the overall design, then by all means...?
Slight problem: the Prada was referenced in the '677 patent [uspto.gov]. I.e. The patent was awarded with full awareness of the LG Prada phone, meaning that the LG phone must have been different enough so as not to invalidate the claims of Apple's design patent.
So that would mean that anybody could make an exact copy of the LG Prada phone, and Apple could not sue them (well of course you can sue for anything, but they couldn't possibly win).
Yes, exactly. But bear in mind that the Prada was actually a slide phone with a hard keyboard.
As I understand it, the fact that Samsung is denied the right to present the evidence is because their legal team was so dumb fuck stupid not to present the evidence in the legal phase where evidence is supposed to be presented. Call it a technicality if you must. Nevertheless, the judge is 100% right to suppress said evidence on the grounds it wasn't presented on time.
Legal proceedings are very precise. Samsung lawyers seems to be very stupid on that one.
There will be an appeal anyways, so who cares?
Agreed on the first part, but the appeal can only address legal issues, not factual ones. The factual record gets established at trial, so it does matter. The appeals court could always remand and call for a re-trial, but that's pretty rare.
But LG won a design award in 2005 for what Apple claims they should have sole ownership of, when they didn't demo it publicly or release it until 2006.
The Prada was a slide phone with a hard keyboard. That's a very different design.
Except that is exactly what their design patent is asserting is their 'invention'.
Claims We claim the ornamental design for an electronic device, substantially as shown and described.
And their drawings are just scribblings of a rectangular form factor with rounded corners and a bezel.
Not "just". Design patents are actually very narrow: the design claimed is not just "rounded corners" or just "a bezel" or just "a rectangular form factor", but all of those things, in combination... and even in more depth. Every aspect of the design shown is part of the patent claim, including the specific curvature of the corners, the size of the bezel, the symmetrical placement of the screen within the border, the edge curvature, etc. Change any single one of those, and you don't infringe, by definition.
They're not "scribblings" - you could actually take a ruler and protractor to them if necessary.
Patents applications are only made public by the patent office after they are granted which may take years to happen. Never heard of submarine patents?
That's absolutely true... before 1997. Welcome to the future, my friend! Applications are now published after 18 months.
While China and America vie for Gold in London, other copyright trolls are waging an X-rated battle...
While the Horde and Alliance battle in the Outlands, other copyright trolls are waging an X-rated battle...
While McDonalds and Burger King fight over the best fries, other copyright trolls are waging an X-rated battle...
While sensationalist submitters and editors figh- oh, wait, they're in total agreement.
Read: "in the discovery stage", the discovery stage being the time during which both parties can enter exhibits into evidence. The only real "too late" in discover is when it's over, though a judge can, as Koh did in this case, disallow evidence if it is brought in near the end of discovery.
I believe you're reading poor journalism as if it's factual. First, it wasn't actually Koh that disallowed the evidence, but Judge Grewal, the magistrate judge who presided over the discovery phase. Second, the discovery period was over... It wasn't merely "near the end", but expired. All of the documents are available here.
However, this is only supposed to be done if it is wholely new evidence, completely unknown to the other party, which the other party would require time to investigate. Since Samsung's filing was in response to Apple's filing regarding the F700, Apple was clearly aware of the F700 and this was not wholely new evidence, therefore it should not have been barred.
Nope, the internal documents regarding the design of the F700 were entirely new. That Apple was aware of the existence of the phone is irrelevant, if they were unaware of the internal documents. Plus, it still fails to answer the question of why didn't Samsung release these during the discovery phase?
iPhone, btw, not iPad)
Thanks for the correction. What Samsung is trying to claim is that they independently designed the F700 without copying Apple's design... but they can't use their documentary evidence, because they withheld it from discovery.
Its not what Apple is trying to claim. Apple is trying to claim that Samsun dependently designed the F700 they are alleging copying.
Actually, no... Here's the trial motions. The most recent is Apple's response to Quinn's declaration and motion for sanctions. Apparently, the only thing they claimed about the F700 was that it was a slide phone.
Now they know that to be false because of the dates. As far as I understand it the dates make Apple's claim impossible and Samsung's evidence shows this. Once Apple claims something they know to be false based on the excluded evidence that opens the door. Apple cannot freely perjure because Samsung got sanctioned. I think at this point, Apple has opened the door. Because of Samsung's late filling Apple had the right to ignore the F700 entirely. They don't have the right to lie about the dates various events occurred.
However, they can certainly describe the F700 factually, without discussing any of the design dates.
Now if you are right and the F700 were in fact late enough that it could have been after the images of the iPhone then this whole gets tricky but I suspect the result is the same. Because Apple is still alleging events that occurred inside of Samsung i.e. they are making positive claims that Samsung employees committed torts which evidence shows they did not commit. I think they have to make a positive case for copying and that's going to be impossible not to trip over Samsung's internal documents. So again I don't see how to have the kind of one sided sanction you are pushing for without holding Apple to a very high standard.
There is two ways to look at this. F700 is either fundamental or not. If Quinn is telling the truth and the entire defense is going to based on that both Apple and Samsung were copying Sony, I'm sorry Koh cannot exclude the core of entire defense that's simply too harsh a sanction. We do not sanction defendants for minor errors without automatically losing cases.
Well, except that if their entire defense is based on that, then they shouldn't have withheld it during discovery. The rules are impartial and require both parties to disclose evidence in a timely manner... Samsung doesn't get a pass just because they'd lose.
Similarly if the F700 is key to Apple's case that Samsung was copying then everything related to it is important. If it is a side issue than Apple should have the right to decide whether to just avoid it, or lose the sanction.
So I disagree pretty strongly. Once Apple makes claims about anything that happened inside Samsung the evidence of what really happened comes in. Regardless of what Samsung did during discovery. Samsung's misbehavior at discovery never gives Apple license to perjure or mislead the court.
No, I agree, Apple can't make any misleading or factually incorrect statements... But they don't have to ignore the existence of the F700 completely, particularly when it was disclosed during discovery. It was only the design documents that were withheld, so it's only those documents that are excluded.
/me looks at address bar
Hmm, so this isn't Wikipedia, then?
You said that, "until recently," you were missing this detail. I haven't heard anything about it, so isn't it reasonable to ask for a link?
But, I digress, here's your citation and a quote.
The presiding judge of the case, Lucy Koh, rejected Samsung’s multiple motions on the matter, because they were filed too late in the discovery stage (the stage when the two parties in a trial submit their evidence).
You said "Samsung countered by attempting to introduce the barred documents shortly after, still within the required timeframe.."
Your citation here is that Samsung filed motions to introduce the barred documents "too late."
Does "too late" mean something different to you?
There is a doctrine called subornation of perjury. Lawyers cannot present a case they know to be false. Once they have indicated that F700 came after the iPad if that is false that's a perjury. They cannot make filings that the F700 came after, if thats false. There is no such thing as a one sided exclusion. There are a series of true statements about the F700 that can be entered into evidence or not entered. Apple has control there. Samsung having missed a deadline does not entitle Apple to enter false statements about the F700 into evidence.
And that is what Koh is permitting in Samsung's view.
(iPhone, btw, not iPad)
There's no intimation that any perjury is going on or false statements are being entered, so I don't know where you're getting that. The F700 came after Apple's original designs for the iPhone (it even post-dates their original patent applications that go back to 2006, I believe), so it's not false to say that it did.
What Samsung is trying to claim is that they independently designed the F700 without copying Apple's design... but they can't use their documentary evidence, because they withheld it from discovery.
Samsung countered by attempting to introduce the barred documents shortly after, still within the required timeframe.
Got a citation?
It's excellend grounds. Once something is introduced as evidence, it's fair game for both sides to do with it what they will. Samsung missed a deadline to introduce documents relating to the conception of the F700 and was barred from introducing the documents relating to the conception of the F700, and rightly so;
FTFY. If Apple introduces those documents, then it's fair game for Samsung to discuss them.
however, once Apple introduced it, it became fair game for Samsung to discuss. They're not being allowed due process with reegard to the evidence presented by their opponent. That's clear judicial bias, the strongest grounds an appeal can stand on.
Nope, there's no evidence of bias here, as the judge is following Rule 37 exactly:
If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
They can certainly argue about the allegation being false, as well as ask questions of witnesses, but the specific documents? Those documents are inadmissible unless Apple brings them up
Ok, just so I have this straight.
Apple brought up the charge that the F700 is a copy of the iPhone.
Samsung knows this is not true and has the documentation to prove it.
What you are saying though is that yes, Samsung can claim that Apple is full of shit, but Samsung cannot present evidence of Apple being full of shit unless Apple specifically brings up the evidence of them being full of shit?
Yes, with one addition:
Samsung had these documents in their hands the entire time, knowing that time was ticking down for them to produce them. They decided not to. They waived any opportunity to raise it.
So hang on. Apple is allowed to bring, after discovery, the existence of the F700 into evidence but Samsung is NOT allowed to bring the conception and design?
Yes, because Samsung had documents about the conception and design in their possession and never brought them up.