decoration decoration

When you want to know more...
For layout only
Site Map
About Groklaw
Legal Research
ApplevSamsung p.2
Cast: Lawyers
Comes v. MS
Gordon v MS
IV v. Google
Legal Docs
MS Litigations
News Picks
Novell v. MS
Novell-MS Deal
OOXML Appeals
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v Novell
Sean Daly
Software Patents
Switch to Linux
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.

Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal

User Functions



Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.

What's New

No new stories

COMMENTS last 48 hrs
No new comments


hosted by ibiblio

On servers donated to ibiblio by AMD.

Samsung Files Motion to Stay Judgment & Why This Case Matters ~pj
Tuesday, August 28 2012 @ 10:20 AM EDT

Samsung has now filed a motion to stay judgment until after all the post-trial motions are completed. This is under Federal Rules of Civil Procedure 62(b). It also asks for expedited briefing.

Did you notice that the LA Times today has an editorial about the Apple v. Samsung verdict? It's not a "Yay, Apple crushed Samsung" piece. Instead, it looks at what this verdict may mean for customers, and it's not such a happy sight. I recommend you read it, and I'd like to tell you why I think this case matters.

Here, first, are the filings:

1941 - Filed & Entered: 08/27/2012 MOTION to Stay re [1933] Clerk's Judgment Samsung's Motion for Stay of August 24, 2012 Judgment filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. Responses due by 8/29/2012. Replies due by 8/30/2012. (Attachments: # (1) Proposed Order Granting Motion for Stay)(Maroulis, Victoria) (Filed on 8/27/2012)

1942 - Filed & Entered: 08/27/2012
MOTION to Shorten Time re Motion for Stay filed by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Declaration of Victoria Maroulis, # (2) Exhibit 1, # (3) Proposed Order Granting Motion to Shorten Time)(Maroulis, Victoria) (Filed on 8/27/2012)

To explain why I think it matters, I need to remind you of other things that have been going on, trying to exclude FOSS from the market. Because that really is what I think this is about.

Remember how Oracle tried to expand copyright law to cover the structure, sequence, and organization of Java APIs? It failed (subject to appeals). But it tried hard. Had it succeeded, it would have upended how any open source software could be built and used, and it would have excluded individual developers like Linus Torvalds in his student days creating Linux in his bedroom, because only those with money to pay royalties would be able to do any coding for the marketplace, if moves like that had succeeded. One of Michael A. Jacobs' law students volunteered to help cover the trial for Groklaw, and she told me that this is what she had learned about the case in class. I take it that means it was its purpose. Do you want a world where only the present incumbents are allowed to create anything meaningful? How does that benefit you or me?

Remember when Microsoft did its patent deal with Nokia and then they both did patent deals with MOSAID, a nonpracticing entity that presumably will be using the patents those two lovebirds provided to sue Android vendors and who knows who else? Patents exclude. That is their purpose. Android is the target. Did you notice how Microsoft crowed in public about the Apple verdict, predicting it would be beneficial to Microsoft?

Remember back when Microsoft helped SCO afford lawyers in the very early days of the SCO saga? What was the goal there? To slap royalties on Linux and get rid of the GPL, so as to block Open Source's free development model, and make it so expensive no one would want to use Linux on servers any more. Remember when SCO even offered to help Linux-using companies move not to SCO's UNIX products but to Microsoft servers?

Now, it's Apple and Microsoft on a jihad against Android and hence Google. That's why you see attacks on Google in an endless stream in the media and even in regulatory bodies, where Microsoft friends who take Microsoft money complain about Google. Android is eating Apple's and Microsoft's lunch in the marketplace, because people love it and OEMs love it, so the proprietary world has apparentely decided to use the legal system give them a win there, since they can't win fair and square in the marketplace. Actually, they could, but they'd rather not.

What are the weapons? IP law. They have copyright, they have patents, and now they have a new weapon of choice -- trade dress and design patents -- thanks to Apple. And that is why this case is so appalling, because Apple has now opened up a new area for litigation and exclusion. That's what the L.A. Times noticed:

Nevertheless, it's worth remembering that Apple made its name building successful, even iconic products based on ideas that other companies pioneered. The iPhone, for example, was a significantly better version of the smartphones Nokia introduced more than a decade earlier. Innovation is by its nature an iterative process, and good patent policy creates an incentive to innovate more. Bad policy just makes it easier for patent holders to extract royalties from anyone venturing within reach of their claims.

The risk is especially great in the area of patents on design, such as the ones that covered the look and feel of Apple's iPhones. There's a fine line between designs that are purely decorative (which, oddly enough, are the ones eligible for patents) and those that serve a function (which aren't). For example, do rounded corners on a phone simply help set it apart, or do they make the device slip more easily in and out of a pocket? ...

If Apple's win slows the wonderfully frenetic pace of product development in mobile devices and leads companies to battle in courts instead of the marketplace, consumers will be the ultimate losers.

There's no if about it. It certainly will have that effect.

My point is, it's all about the same thing -- to make it impossible for Android to survive as it is, and now we will see litigation after litigation -- Apple has already filed another lawsuit against Samsung -- and the end result is to make Android cost more because of encrusting it with high royalty obligations, so it cuts into the vendors' profits sufficiently that it will end up making it undesirable to use. That's why, I believe, Apple offered licenses to Samsung on its first visit to discuss matters at such a high price. It would have cut Samsung's profits so radically, it would no longer make much sense to use Android. I think they had to know Samsung couldn't agree to that price. Apple itself is complaining about a much, much lower price for FRAND patents, after all, saying it can't afford to build its products with that price added. Did Microsoft pay that high price?

But, I hear you say, that's anticompetive behavior. Isn't that patent misuse? Misuse of the courts? I think it is. But I'm not a lawyer. And antitrust law is complicated, and thanks to folks who think business should be unregulated, it's a little bit toothless at the moment.

Time will tell how others view it, but I despise the strategy. The purpose of both copyright and patents is to encourage innovation and progress. The purpose of trade dress protection is to make sure consumers are not confused as to origin of goods and products. Design patents are supposed to protect only ornamental features, not functionality. None of it is supposed to be for the purpose of killing off newcomers to the market. Is it even Constitutional to use them that way? You tell me.

Remember too that Apple itself reaps benefits from Open Source software. It switched from its own software to OSX, which is BSD code. Why? Because it was better than what it had done itself. So it surely knows what FOSS can do. Now, it wants to make sure no one else can offer what it offers, even in such basic elements as rectangles with rounded corners and rows of brightly colored icons or ways to touch a tablet that are simply intuitive. Intuitive is just another word for obvious.

And that is why this case matters. Why were these patents even allowed? Why should it be the law that only Apple is allowed to meet the public's expectations on what a device should look like or how it should work? The fundamentals should be free for everyone to take and improve on. That's what Apple did with BSD code, and now it wishes to slam that door shut. It's not enough that it's the most successful company ever? No one else can be successful too? That's the same thing as saying only Apple gets to sell what the public wants. It needs to control the entire world's phones and tablets?

I know. You will say others can do other kinds of smartphones and tablets. True. If all the patents in the world were just these Apple patents, we could maybe work around this. But there are many holders of patents that related to smartphones. This isn't the end. It's just the beginning.

The market has spoken. It wants simple and clean design. Yes, Apple was the one that demonstrated that taste matters to the public. But now that everyone wants that, should it really be the law that only Apple can provide it? No one else is allowed to be beautiful? Those of us who don't want Apple products have to have lesser functionality on uglier devices? Who wrote *that* law? Are patents supposed to shut off an entire field?

Steven J. Vaughan-Nichols reports on what lawyers are saying about the verdict and the appeal, and notice this:

The home-town jury and the sheer mass of accusations aside, Thomas Carey, a partner at Sunstein, a major intellectual property (IP) law firm and chair of its Business Practice Group, said, “Clearly there will be an appeal to the Federal Circuit. Among other things, the challenge will likely include the question of whether the "look and feel" patents involve eligible subject matter, or whether they are too much akin to a mathematical algorithm to warrant patentability. The principal patent claims all involve 'a computer implemented method,' which to some folks strays over the line into unpatentable material.”...

As Carey points out though, “It is possible that the Federal Circuit will reverse. If they do not, there is a decent chance that the Supreme Court will take an interest in this. SCOTUS [Supreme Court of the United States] has been all over the map lately concerning what is and is not protectable; and this may be a chance for them to clarify (or further confuse) the subject.” If that were the case, Apple could ultimately lose big.

This case represents to me just the next proprietary move to paint FOSS into a corner. The intention is to tie it up with royalties and IP law restrictions that limit what it can offer so that it dies there in that corner. Steve Jobs said so, that he intended to kill Android. We need to take him at his word. That is what we are watching play out. And so there will be litigation after litigation now not just about copyright and patent infringement, but also now about the look and feel of devices. I can't believe how stupid this has all become. But look to the law. The proprietary side is doing this because it can. No IP law should be so harmful to the public as this. Do not be fooled by talk about the holiness of IP. We're talking about monopoly rights here, and monopolies are supposedly only allowed for limited times, because they do harm, and only if there is a net benefit to the public. Is what is happening now benefitting the public? If not, is it Constitutional?

Think before you buy. If you care about freedom or even just more openness, enough to be able to do what you want with your own devices, you can respond to what you see happening in the courts. Yes, Apple has rights. But so do you. You *buy* these devices. They then belong to you, not Apple. So Apple isn't the only one that has ownership rights. Of course, they have EULAs to force you to agree to merely licensing the software, so if we want real freedom, we have to get out of that lockup and regain some control over own own things. I've bought so many Apple products over the years. And I truly loved them. But Apple is dead to me now. Unless I see a major change in legal behavior, I simply will not buy what they sell. If that means buying an uglier and less functional product, so be it.

But something is truly bizarre about the law if those are my only two choices.


Samsung Files Motion to Stay Judgment & Why This Case Matters ~pj | 481 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Samsung Files Motion to Stay Judgment ~pj
Authored by: Anonymous on Tuesday, August 28 2012 @ 10:24 AM EDT
Won't choice be improved by pushing other companies to innovate rather than

Have Samsung take a look at how phones are used today and come up with something

[ Reply to This | # ]

Samsung Files Motion (and the way that PJ lays it out)
Authored by: Anonymous on Tuesday, August 28 2012 @ 10:38 AM EDT
PJ, interesting analysis - in particularly the way that you
frame this as "good design and function" contrasted to "non-

ONE of the problems with Apple is that you have to buy into
their whole ecosystem - the walled environment; the
inability to experiment, and so on. That's always been a
known issue, and has contributed to my never buying a single
Apple product. But those were the rules of the game going

What I cannot abide is their monopolism. Use of the legal
system to avoid competition by destroying it. It may be
creative destruction (to borrow from Mitt Romney) but it is
a killer in terms of new advances and new products.

Apple is the new bully. Microsoft has been replaced. Is
this an improvement?

[ Reply to This | # ]

RMS was right...
Authored by: Anonymous on Tuesday, August 28 2012 @ 10:49 AM EDT
I can't help but remember that there's nothing fundamentally new in the software
world since the 1940s or so.

That unfortunately seems to include the need to kill off everything that doesn't
pay the old boys club. The members may have changed, but this fight started
almost a century ago. And the war started long before that.

It's just that most people now have the tools to co-ordinate and collaberate
well enough to see that it's happening *now* rather than just that it *was*
happening *then*. This is a really good thing, and one of the many reasons why
we shouldn't let them take control of the internet.

Welcome to the war,
We don't know what we're fighting for.
(But we know what we're fighting against)

[ Reply to This | # ]

  • fried potatoes. - Authored by: Anonymous on Tuesday, August 28 2012 @ 05:41 PM EDT
    • fried potatoes. - Authored by: Anonymous on Tuesday, August 28 2012 @ 06:18 PM EDT
      • fried potatoes. - Authored by: Anonymous on Saturday, September 01 2012 @ 05:34 PM EDT
Authored by: Anonymous on Tuesday, August 28 2012 @ 11:00 AM EDT
PJ, its Fred Grott here..

First up most well selling non-feature and feature phones
selling before 2007 had rounded corners..I know because I
have a Nokia s60 that has rounded corners and a 1.5G T-21
Ericsson that has rounded corners. Apple is beyond just full
of BS..

But, second before pass judgement on your theory lets try to
collect evidence to prove it wrong or right as we might
learn some things.

1. We need to find out what Apple and Microsoft patent
agreements there are from 2007 till now. Obviously the first
place to look is the 10K and other !0 SEC forms and those
can be searched and read online.

2. Any 3rd party entity we find that was set up by MS and
Apple will have a state filing when the copp is setup and
as of now the only states that hide such things to minimum
info is Nevada.

Its not that Google has enough or does not have enough
people on this, its finding things out and exposing it to
light of FOSS that is needed no matter if we find evidence
for your conclusion PJ or find evidence against your

Remember ESR's Halloween Memos? Maybe in the spirit of that
if we find evidence to support the conclusion. ESR certainly
would be proud if we followed that example..he still looks
on those memos as high points in FOSS awareness.

[ Reply to This | # ]

Samsung Files Motion to Stay Judgment ~pj
Authored by: Anonymous on Tuesday, August 28 2012 @ 11:02 AM EDT
Samsung is not foss.
They are just using some foss software in their but also added a big amount of
iPhone features and looks just to make huge profits.
There is no use rallying behind these copycats.

[ Reply to This | # ]

OFF Topic Disable Java NOW, users told, as 0-day exploit ( for Windows) hits web
Authored by: Anonymous on Tuesday, August 28 2012 @ 11:16 AM EDT
Thank goodness for Java blocking software addon's for Firefox and the fact I am using Gnu/Linux and NOT Windows . Link Clicky here .

[ Reply to This | # ]

News Picks Here
Authored by: soronlin on Tuesday, August 28 2012 @ 11:19 AM EDT
Please include the title and a link to the original article.

[ Reply to This | # ]

Corrections here
Authored by: SpaceLifeForm on Tuesday, August 28 2012 @ 11:33 AM EDT
If any.


You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

OT here
Authored by: SpaceLifeForm on Tuesday, August 28 2012 @ 11:36 AM EDT
Please make any links clickable.


You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Comes docs here
Authored by: SpaceLifeForm on Tuesday, August 28 2012 @ 11:37 AM EDT


You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Samsung Files Motion to Stay Judgment & Why This Case Matters ~pj
Authored by: Anonymous on Tuesday, August 28 2012 @ 11:39 AM EDT
Disagree with the article writ the following:
1. Having gone through the feature by feature "analysis" documents by

Samsung, I have no sympathy for them with this ruling.
Samsung is not a small, newcomer who is being attacked by Apple. It is a
$165 billion worth company.
It is hard to support someone being lazy and feeding on other's hard work
like a parasite.

2. Apple's designs are not the only beautiful designs that are possible. Check
the Lumia by Nokia. If that same design had come from Apple, it would have
been media and public darling for years to come.

[ Reply to This | # ]

...."if those are my only two choices. "
Authored by: Anonymous on Tuesday, August 28 2012 @ 11:45 AM EDT

Talk to your congressman.

Note that those are the only two choices in *your* country.

Everyone else in the world looked at the law suits, looked at the patents in
questions and laughed them out of court

(except the Germans, who desperately need all the money they can get at the
moment to stop the euro collapsing, but pretty much the rest of europe ignored
the germans [which is why there is a euro crisis])

[ Reply to This | # ]

Samsung Files Motion to Stay Judgment & Why This Case Matters ~pj
Authored by: Anonymous on Tuesday, August 28 2012 @ 11:54 AM EDT
From what I have read, it seems like the foreman of the jury
acted as an expert witness in the jury room. Isn't that
enough to throw out the verdict? Also, they didn't even take
the time to consider the prior art, because it was "bogging
them down". Thus, they were more worried about getting done
then getting it right. Given these statements by jurors how
could this verdict stand?

[ Reply to This | # ]

Authored by: Anonymous on Tuesday, August 28 2012 @ 12:09 PM EDT
Those of us that lean toward less regulation would include IP
law in "things to curtail". It is a real canard to complain
that wanting Anti-trust law curtailed will let IP law run
rampant ... we want both unfurled to reasonable degrees: don't
beat up Apple for being successful, but don't permit them to
beat anyone else up, either.

[ Reply to This | # ]

It mostly hurts US companies
Authored by: Anonymous on Tuesday, August 28 2012 @ 12:26 PM EDT
Most of the rest of the world has laughed at Apple's patents, and said they
don't matter, or are invalid. So the rest of the world is free to manufacture
and use Android and Samsung devices at will.

If a US company wanted to have a Samsung device, or try to build an Android
device, they have to fight these silly patents. No one will try, and so the jobs
go over seas.

Ta-Da the US is hurt. Apple doesn't manufacture in the US anyway, so they didn't
create any jobs here, except the lawyers.

[ Reply to This | # ]

Authored by: Anonymous on Tuesday, August 28 2012 @ 12:27 PM EDT
If the corners were octagonal instead of rectangle would that solve the legal
issue? Would anyone care about the design difference?

[ Reply to This | # ]

Samsung Files Motion to Stay Judgment & Why This Case Matters ~pj
Authored by: Anonymous on Tuesday, August 28 2012 @ 12:44 PM EDT
Looks like the foreman made a mistake. In interview, he says patents valid
because Apple software cannot run on the processor of the prior art! See 2:50.

[ Reply to This | # ]

Samsung Files Motion to Stay Judgment & Why This Case Matters ~pj
Authored by: Anonymous on Tuesday, August 28 2012 @ 12:54 PM EDT
If I remember correctly, Google itself says the judgement is NOT about Android.

I understand that when FOSS is attacked, you will vehemently respond.

Don't forget, MANY devices were found to be non-infringing. Just look at those

that were, look at Samsung's pre/post phones and you'll see they did copy

Their recent devices do move away from Apple's design, so we know its possible.

Its not easy, but good design and good UI requires innovation and hard work.

Someone said recently talking about Nokia as an example of a good design,
lacking only in the OS. That proves there are other designs that could be
successful, running Android.

I'm tired of everyone talking about round-rectangles. Its as though you believe
you say it enough it will make it true. Its never been about round rectangles.

Has anyone actually LOOKED at the devices that were judged to NOT infringe?
Hey, guess what, some had round-rectangles. How does that square with all
your conspiracy theories?

Oh, and the point that the market has spoken and chosen Android because of
features and functions? There is no doubt they have spoken. There is no doubt

that they are buying them in volume. When I can get 2 for one deals, when I can

get Android for $50, who, other than someone that wants/needs/can afford an
iphone costing several times more, would not buy an Android phone.

I wonder if journalists will now go back and look at the statements by Samsung
about the millions of devices they shipped and compare that to their court
documents about how few they actually sold...

But I digress.

I'll now speak the heresy that will ban me from this site forever.

It feels to me like the honorable mission that Groklaw once was has morphed
into a group of fanatics that rant and rave about conspiracies and gloom and

Apple/Samsung was NOT about FOSS. Its about blatant copying. I don't expect
you to see that, so you have lost a long time supporter of this site. I expect
will lose a lot of readers like me. Its okay though, because the remaining
readers will just shout louder, repeating tired old meme's believing that if you

say it enough, it will become true.

How sad.

[ Reply to This | # ]

Authored by: Anonymous on Tuesday, August 28 2012 @ 01:31 PM EDT
It is funny that the people who rant on about "the market" and how
powerful "the market" is and how "the market" solves all
problems are the SAME PEOPLE that scream that without government sponsored and
government defended monopolies they could never build products.

You know, a lot of people think that patents are a RIGHT. They really think the
Constitution REQUIRES that anyone be able to patent anything. The IP
maximalists are succeeding in convincing ordinary people that monopolies are a
right, and for some reason people seem to accept that they do not have and even
should not have rights in the products that they buy. They have been convinced
that companies might cheat other people, but never them.

I know people where I work do not care about copyright. They actually say ...
straight out ... that if *they* want to copy something there will always be a
way around any restrictions, and they will *never* be punished for it. They
think they will never be held to any of the conditions in the contracts they
sign, at least not any that they care about. The corporations will take care of
them. They fear the government, but they do not fear the corporations.

When will people wake up? Or will they? Maybe the dystopian novels are right.

[ Reply to This | # ]

Apple has always been a badge engineering company - never an innovator.
Authored by: Anonymous on Tuesday, August 28 2012 @ 01:40 PM EDT
Apple is what is referred in UK as a classic "badge
engineering" company. It doesn't build its own phones or
Macs. Nor has it produced or invented any of the technology
that goes into Apple's hardware products. When you buy an
Apple iPhone or iPad, what you are getting is
Samsung/others' inventions, and Samsung/others' technology
onto which Apple has stuck on their badge and charged a high
price for - a bit like Christian Dior or Channel. This is
just like Microsoft made its money not through inventing or
pioneering anything, but through marketing - i.e. winning
the IBM PC DOS supply contract from an operating system
bought for $60,000 from another company, hijacking PC DOS to
make MS DOS, hijacking OS/2 to make Win 95, and then abusing
its market monopoly for all it was worth.

Both Microsoft and Apple are parasitic not innovative. They
have been marketing experts and have now graduated as legal
abuse experts, and patent trolls.

Apple has actually made no innovation of its own other than
branding and marketing. The iPod started Apple's road to
profitability, which allowed it to get a winning start
against Nokia who pioneered smart phones. What did Apple
invent on the iPod that made it successful? Nothing to do
with technology - what made the iPod successful was the
marketing of downloadable music on an Internet store - a
marketing scheme, not an invention. The users locked into
iPod transferred to iPhone later on and this allowed Apple
to challenge Nokia the smartphone pioneer because of the
music they had bought from iTunes.

When Apple talks about their innovations, it makes me laugh.
The rectangle, rounded corners, flat face - not really
innovation except in the crazed mind of an Apple fanboy.
After all you can see all these geometric features on the
stone circles at Stonehenge. Application of these features
to mobile phones is pretty obvious and has been done by

The slide to lock patent - are you serious? Sliding locks
were invented in the bronze age and before. Apple just put
animation simulation of a sliding lock on a computer and it
is new invention! I guess that on that basis that would
allow you to patent putting images of cars with wheels that
turn on a computer, and you get a patent for showing a wheel
on a computer which allows you to block everyone else from
showing a wheel on a computer. Window bound patent? I guess
that would allow computer games vendors to patent various
effects from being used on computers and block everyone else
from do that.

Until now I thought of Apple as an innocent but quirky
company, but what they have done now is total evil. The
sheer greed and arrogance of the company! Apple makes a huge
profit margin off the back of the OEMs and innovators that
makes and enables its income from marketing possible it's
possible. These companies are competing in the market
selling their own products and innovations in the free
market, but Apple wants it all. Apple will use rigged courts
and every dirty trick possible to exclude free and fair
competition. It is not a case of Apple losing money, they
are raking it in. They just don't want anybody else to
compete. Apple is every bit as evil as Microsoft.

I wonder how many Apple customers would pay such high prices
for what are really lower spec'ed branded Samsung devices,
when they realise can get the real thing for less, and how
many of Apple's customers will buy Apple's overpriced and
under-performing products if they realise this.

I guess that is why Apple is so desperate to lock the
competition from the market. This court case which has every
indication of being fixed, was preceded and followed by a
media PR blitz by Apple aimed at slandering Samsung for
"copying". Apple has no value beyond its brand, and Apple
knows it, that is perhaps why it is so paranoid when Apple
customers who are capable of thinking for themselves are
starting to see this - for example in the Galaxy S3 and the
Nexus 7 Tablet.

Not that Apple is threatened with total extinction - Apple
has a future as a profitable niche player, it is just that
its market worth is just grossly overvalued, and it cannot
be sustained at those levels any more than Facebook's.
Besides, there are many poorly educated sub-minimum wage
customers who can't afford a decent car or a decent house,
and can't think for themselves, but can still afford an
iPhone as a status symbol, and who think that Apple actually
invented the rectangle, rounded corners, and even the
smartphone - the court jury and many blog comments full of
this type of people demonstrated that Apple still has this
hardcore support base, even if the informed and the free
thinkers are buying more and more Android phones.

[ Reply to This | # ]

Authored by: Kilz on Tuesday, August 28 2012 @ 01:47 PM EDT
Glad to read you now think we dont need EULA's PJ. I have
been against them for a long time, especially the click
through type commonly used for applications. I truly think
few people really read them in the hurry to use the newest
thing from some company, and the fact that people think they
own something when they buy it. Any agreements should be on
the outside of the package in some way so that people can
actually read them before purchasing as a lot of stores will
not accept returns of opened software. So even if you dont
agree with the EULA its hard to get your money back.

[ Reply to This | # ]

  • EULA's ??? - Authored by: Tkilgore on Tuesday, August 28 2012 @ 04:36 PM EDT
  • EULA's - Authored by: cybervegan on Tuesday, August 28 2012 @ 05:53 PM EDT
    • EULA's - Authored by: Kilz on Tuesday, August 28 2012 @ 06:24 PM EDT
      • EULA's - Authored by: Anonymous on Tuesday, August 28 2012 @ 10:22 PM EDT
        • EULA's - Authored by: Kilz on Wednesday, August 29 2012 @ 01:00 AM EDT
Samsung Files Motion to Stay Judgment & Why This Case Matters ~pj
Authored by: Anonymous on Tuesday, August 28 2012 @ 01:50 PM EDT
I'm becoming allergic to Apple so no question of buying it. I
will also protect my near and dear ones from the undesirable
allergy called Apple.

[ Reply to This | # ]

Motion to Stay Judgment + Motion to Lift Preliminary Injunction
Authored by: Anonymous on Tuesday, August 28 2012 @ 01:53 PM EDT
If they win the Motion to Stay can they still pursue the
Motion to Lift? ie would a stayed motion mean the Galaxy tab
10.1 could potentially still be prevented from sale?

[ Reply to This | # ]

Samsung's mistake
Authored by: jjgignac on Tuesday, August 28 2012 @ 02:01 PM EDT

Although I didn't follow the case too closely, I get the impression that Samsung's defense made a huge error.

The case was similar to Oracle vs. Google in that Google and Samsung were both accused of copying. The fact is, in both cases, they did copy -- but for the most part, they only copied ideas which were unprotected or unprotectable.

Google never denied that they copied. The couple files that were blatant copyright violations, they admitted, and did what they could to minimize the damage. Then they focused on proving that they were entitled to copy what they did. It was an honest defense, and I believe the jury could sense that.

Samsung, on the other hand, focused on denying that they copied. Any jury can see through lies. It only made them look like the bad guy. They should have focused on their rights.

I'm not confident that Samsung can reverse this on appeal, especially if they keep up the same strategy.

[ Reply to This | # ]

PJ, your bias is pushing me away
Authored by: Anonymous on Tuesday, August 28 2012 @ 02:01 PM EDT
I've been reading Groklaw since it first started and I've long enjoyed PJ's
insight and dispassionate analysis. Unfortunately those days seem to be over
and I don't understand why.

PJ, could you please dial back the hate and go back to explaining the legal
stuff? In keeping with your site's motto, I do want to know more and I don't
know where to look, but apparently it's not here. I always enjoyed reading your
comments saying "you shouldn't predict outcome X yet because this filing is
just the beginning, we have yet to see papers Y and Z." But lately it
seems like all you provide are rants against anyone who dares to attack anything
related (no matter how distantly) to Linux.

Freedom is important, the GPL is important, yes. But companies who don't
"believe" are not evil, they're just acting in their own best interest
-- that's what businesses do. Apple exists to make money and they're playing by
the rules to try to hurt their competitors. It would be nice if companies only
competed in the marketplace but, come on, we all know that's not how it works
(and it has NEVER been that way).

I don't like software patents and I don't like the precedents Apple is creating
any more than you do. But continually shoving your hatred in my face is only
pushing me away from your site, it's not making your case any stronger. By
analogy, I don't like pollution or animal cruelty and I won't hang around with
people who rant about them 24x7.

A fanatic is someone who can't change his mind and won't change the subject. I
for one could do with less fanaticism. If you want me to get frustrated about
patents, tell me what I can DO to change things. Is there a bill moving through
congress that would restructure the patent system? I'd gladly write my
representatives if I knew which bill to mention. But I don't need to keep
spending time here if I'm just going to read about how frustrated you are and
how much you wish the world was different.

Please remember why you started this site and try to move back towards that
original intent.

[ Reply to This | # ]

Black vs. White, Good vs. Bad, Dog vs. Cat
Authored by: mexaly on Tuesday, August 28 2012 @ 02:04 PM EDT
I can't help recalling how good Apple looked when Microsoft was Dr. Evil. IBM
was once the dark lord.

Studying IT security, I recall the realization that trusted vs. untrusted is an
oversimplification, as with good versus evil.

We often share a reasonably common frame of reference, and we can draw dividing
lines accordingly. But over time, our frame of reference moves, or the world
moves, and things align differently.

Today, Apple is Dr. Evil, and Samsung is our hero.

Maybe it's better to interpret events separately from the players?

IANAL, but I watch actors play lawyers on high-definition television.
Thanks to our hosts and the legal experts that make Groklaw great.

[ Reply to This | # ]

Samsung Files Motion to Stay Judgment & Why This Case Matters ~pj
Authored by: Anonymous on Tuesday, August 28 2012 @ 02:05 PM EDT
Yes, Jobs wanted to kill Android, but not out of some spite against FOSS.
Android was a cynical move by Google to blatantly copy iPhoneOS.
Google brought FOSS into their battle by leveraging copy left to meet their
own greedy need to commodity the mobile device space.

Who would invest the time Apple does to create great products if
companies like Samsung can just come along and blatantly clone their
work? It took Apple years to create the device andSamsung just one to
clone it.

[ Reply to This | # ]

aren't rounded corners a very feminine design? ...
Authored by: Anonymous on Tuesday, August 28 2012 @ 02:58 PM EDT
.... its a fashion thing, whatever happens to be
en vogue. And as all fashion goes this will blow over. There
will be other far more innovative devices.

Personally I feel rounded corners are a very
feminine design, just like white and pink, blueberry etc
colors. But to each his own...

As far as bouncing Icons go, this was NOT invented by Apple.
The Linux Compiz interface had all kinds of animated icons
long before Apple, thats open source by the way.

I am quite sure Apple & Microsoft are highly probably
ripping off from Opensource left and right, its just hard to
prove that with closed source software. Thats why I move
strongly that copyright and patents be only granted upon
full public disclosure of all source code. NO disclosure, No

The Apple products that I have been able to personally
observe are technically very low quality, a professional
photographer friend of mine has had massive dataloss
because of faulty hardware on her Apple computer 2 times in
3 years, and was only able to recover some of her important
data with a full week of hard manual work. Another friend
had massive problems with the graphic card on her
overheating Apple Notebook, which was crashing about 4 times
per hour.

I think its high time we have a lot of public discussions
about the actual technical quality of those overpriced,
overhyped Apple fashion articles. Mostly I think its
iimmature and spoiled teanagers wanting this stuff because
they somehow believe its a way to be more cool in school.
This is actually a very stereotypical Apple user behavior
and and number of stinging satires have been produced on it,
see also south park.

The notion of having to send in your phone to get the
battery pack swapped is ludicrous and just a total ripp off.
But I guess that is the price you have to pay for a
"superior" design. How desperate can you get?

regards -ST

[ Reply to This | # ]

Another Video Interview
Authored by: Anonymous on Tuesday, August 28 2012 @ 03:56 PM EDT

[ Reply to This | # ]

Authored by: Anonymous on Tuesday, August 28 2012 @ 04:32 PM EDT
Verizon, AT&T, Comcast, Time Warner, Pfizer, Merck, Bank of America, Chase,
Wells Fargo, Blue Cross, United Health, Nike, Walmart, Macy's, Reebok,....

The list goes on and on and one....which company will you stop doing business
with next?

The point is you will not find saintly companies. Remember IBM, the reason for
this site's very existence. Research their past and current behavior. You will
find some very unsavory things and you stood up for IBM. Because you approved
of their business tactics? No, because of the law.

Stick to the law. Leave your personal feelings aside.

Continue down this path and you will prove the Maureen O'Gara's of the world

[ Reply to This | # ]

  • Really? - Authored by: Anonymous on Tuesday, August 28 2012 @ 04:58 PM EDT
  • Really? - Authored by: miltonw on Tuesday, August 28 2012 @ 05:09 PM EDT
  • Really? - Authored by: PJ on Tuesday, August 28 2012 @ 05:42 PM EDT
    • Really? - Authored by: nuthead on Tuesday, August 28 2012 @ 10:23 PM EDT
      • Really? - Authored by: PJ on Wednesday, August 29 2012 @ 12:58 AM EDT
        • Really? - Authored by: calris74 on Wednesday, August 29 2012 @ 04:22 AM EDT
          • No - Authored by: Ian Al on Wednesday, August 29 2012 @ 05:14 AM EDT
            • No - Authored by: Anonymous on Wednesday, August 29 2012 @ 07:47 AM EDT
  • Well, my list is: - Authored by: Anonymous on Tuesday, August 28 2012 @ 07:58 PM EDT
Samsung Files Motion to Stay Judgment & Why This Case Matters ~pj
Authored by: Anonymous on Tuesday, August 28 2012 @ 05:00 PM EDT
Trade dress and design patents are not a big deal to me. They are with regard
Samsung in this case, and to Apple's bragging rights, but most Android phones
don't come anywhere near infringing trade dress or design patents, and stock
Android doesn't. Whether or not you think Samsung did infringe in this case,
these issues aren't an industry-wide threat. The worst of the design patents,
rectangle one, Samsung didn't infringe.

However, Apple's utility patents are scary, and stock Android likely infringes
some of them.

[ Reply to This | # ]

Two Unrelated Issues
Authored by: ian.waring on Tuesday, August 28 2012 @ 05:25 PM EDT
On Patents, totally in train with PJ.

The Trade Dress is a little less clear cut, IMHO. If a car manufacturer comes out with a design that is close to that of a Ferrari, then it is a case of passing off. Of confusing prospective customers. That said, it should be judged not on the shape of the floor pan, number of wheels or layout of the controls, but on visual cues (clues?) that make the original brand distinctive.

Samsung flew very close to direct copies of many distinctive iPhone UI layouts, sufficient to confuse a consumer. On that, Samsung had a case to answer.

On patents, and particularly for not being allowed to show prior art to the jury, the court (and it's process) let the public down.

[ Reply to This | # ]

LA Times
Authored by: Anonymous on Tuesday, August 28 2012 @ 06:17 PM EDT
If companies were able to wait for their rivals to come up with successful devices, then rush out copycat versions with confusingly similar features, there would be less money spent on R&D and more on marketing.
LA Times
Doesn't that describe a significant part of MS' behaviour? Except they seem to have an uncanny knack lately of bringing out the copycat as vaporware just before the competitor's real product launch.

[ Reply to This | # ]

  • Add some - Authored by: Anonymous on Tuesday, August 28 2012 @ 07:08 PM EDT
  • The facts are - Authored by: Anonymous on Tuesday, August 28 2012 @ 07:53 PM EDT
    • The facts are - Authored by: Anonymous on Tuesday, August 28 2012 @ 09:09 PM EDT
    • The facts are - Authored by: scav on Wednesday, August 29 2012 @ 09:15 AM EDT
About that round cornered rectangle...
Authored by: Anonymous on Tuesday, August 28 2012 @ 07:10 PM EDT
I just turned the page in my morning print edition to find an explanation of why after 150 years broadsheet they are changing to a "compact" format (can't use the "t" word). An illustration of how things can change is very similar to this .

[ Reply to This | # ]

Design Patents
Authored by: Anonymous on Tuesday, August 28 2012 @ 09:19 PM EDT
As long as we're talking Constitution, has the basic Constitutionality of Design
Patents ever been tested?

It's my understanding that the head of power under which patents are legislated
refers specifically to "writings and inventions", and a purely
decorative design is neither of these things.

[ Reply to This | # ]

Prior art predicting the ipad in huge detail
Authored by: Anonymous on Tuesday, August 28 2012 @ 10:03 PM EDT
Check out this video of TekWar, a TV series from 1994. At fifty seconds in, the actor withdraws a white iPad from her purse. It has rounded corners, and it even has a (not apple) logo clearly visible on the back of it.

The "IVN" shopping network guy (at about one minute ten seconds shows in his palm a "super music machine" which looks like an iPod, at least as much as we can see.

But now for more of "nobody can predict Apple"...

[ Reply to This | # ]

  • Note - Authored by: Anonymous on Tuesday, August 28 2012 @ 10:22 PM EDT
I'm a little bit confused.
Authored by: Anonymous on Tuesday, August 28 2012 @ 11:09 PM EDT
there are 3 IP types:
1- Copyrights
2- Patents
3- Trademarks

As far as I can tell, Samsung might be infringing on Apple trademarks by making
a devices that looks almost like an iStuff. I never saw any mention of it.

Patents? For rounded corners? For a device held in human hands?

I know I won't be popular but this is clearly related to Obama's "IP are
our most valuable resources." statement.

As long as a US interest owns it. It's good. After all, a patent in the US means
the world.

Next we will see patents on words like "Save As...", or on the action
of clicking on a computer mouse, or a different patent: Clicking twice on a
computer mouse. And then we will have corporations that will re-patent the exact
same things every few years, to keep their hold on the technology, like
Honeywell. And... Hu... waitaminute...

Never mind.

[ Reply to This | # ]

Steve Jobs (1996): "We have always been shameless about stealing great ideas"
Authored by: Anonymous on Tuesday, August 28 2012 @ 11:21 PM EDT

Yes folks. An original, undoctored video interview with
Steve Jobs, the same man who called Android a "stolen
product" and promised "thermonuclear war".

And he says in this video interview from 1996: "We have
always been shameless about stealing great ideas."


Look at the confidence. The emphasis on the word

Why is it that Apple can be "shameless about stealing great
ideas", and Samsung is wrong for "slavishly copying" great

As an aside, another article with images showing how Apple
knocked off several existing features for its iPhone. Wish
Samsung's lawyers had shown something like this in court:

[ Reply to This | # ]

Jury made at least six other math errors in damage calculation
Authored by: Anonymous on Tuesday, August 28 2012 @ 11:49 PM EDT

Reposting this with a little more thought. I also added an Apple damages tab to the spreadsheet with an approximation of Apple's damages claim (it will cost you $1.75mil if you want me to make that accurate).

According to the reporting, Apple were asking for fixed damages per unit for the utility and design patents and a percentage of revenue (=100% of profit) for the trade dress infringement, along with a few other minor amounts. If you try to break down the juries award this way you find that the jury looks like they awarded $1 each for the '163 and '381 patents and $1.58 per unit for the '915 patent. Apple asked for $2, $2.02 and $3.10 respectively. However, to make the numbers work you have to assume that the Nexus S 4G and Replenish were guilty of infringement on all three patents.

Also, the numbers for the Galaxy Tab and Galaxy Tab 10.1 WiFi don't add up. They were both found to infringe only these three patents but the damages where $2.71 and $1.42 per unit respectively (these assume the jury didn't have a different set of sale numbers to those published).

The Galaxy Prevail got docked an additional $22 per unit, despite also only infringing these three patents.

The rest of the phones were docked about 14% of revenue for infringing on the design patents or trade dress, except the Gem which was 5%, the Infuse 4G at 10%, the Mesmerize at 17%, the Vibrant at 20% and the Fascinate at 22%.

I made a spreadsheet

These numbers are in line with the process laid out by the foreman (half of what Apple asked for and 14%), although the inconsistencies show that these were either very rushed, whoever did them was incapable of basic math, or that the jury worked off different sales numbers to the published numbers in the court record. Or the initial damages were too low to punish Samsung so they tweaked them by a few million here and there to get to $1 billion.

I would go for the first: This jury rushed through this without a second thought to checking anything. That lead to several obvious inconsistencies in the verdict, and thus an irrational verdict - and I would say this is 'unreasonable'.

The jury actually awarded more money than Apple was seeking for the design patents ($24 per unit), because they misunderstood the law and what Apple was asking. Violation of trade dress entitles the wronged party to ALL of the accused products profits.


[ Reply to This | # ]

Samsung Files Motion to Stay Judgment & Why This Case Matters ~pj
Authored by: Anonymous on Wednesday, August 29 2012 @ 01:42 AM EDT
Intuitiveness depends on the average user's background. What
is obvious for a user that buys a smartphone or a table? Would
that have been obvious to a user interface designer? I'd say
pinch to zoom is pretty obvious and any designer that don't
notice it should be fired.

[ Reply to This | # ]

This is not about FOSS
Authored by: Anonymous on Wednesday, August 29 2012 @ 01:46 AM EDT
I strongly disagree with you, PJ, that this case is about trying to exclude FOSS

from the market.

If Samsung had not slavishly and deliberately copied the iPhone, Samsung
would not be in this mess.

But also, realize that FOSS should NOT violate any one else's intellectual

Just like Camera manufacturers work around each other's patents, FOSS needs
to do the same.

FOSS is not free if it is encumbered by proprietary intellectual property.

[ Reply to This | # ]

Who owns what now?
Authored by: Anonymous on Wednesday, August 29 2012 @ 08:00 AM EDT
>You *buy* these devices. They then belong to you, not Apple.

So naive.

[ Reply to This | # ]

Chances of the judge issuing a JMOL in Samsung's favour?
Authored by: calris74 on Wednesday, August 29 2012 @ 08:23 AM EDT
This may have already been said (there are so many posts on
the jury verdict that I can't read them all)...

I think the foreman goofed big-time by pointing out exactly
how they ignored prior art in deciding that the patents
weren't invalidated. To me, this might just be what draws
the judge to the point of saying that no reasonable (because
clearly this jury was not) could have decided against
Samsung. Remember we thought Alsop with leaning too far in
Oracle's direction and that fear was unfounded? Maybe the
same holds true here. Remembering that she initially tossed
the complaint against the Galaxy Tab 10.1 only to be
overruled on appeal and then having this jury toss it out
again. My blood red veil has finally lowered and I'm ready
to wait and see.

Alternatively, can the denial of the 50b be carried straight
up to appeal?

[ Reply to This | # ]

Samsung Files Motion to Stay Judgment & Why This Case Matters ~pj
Authored by: Anonymous on Thursday, August 30 2012 @ 05:53 AM EDT
bought so many Apple products over the years. And I truly loved them. But Apple is dead to me now. Unless I see a major change in legal behavior, I simply will not buy what they sell. If that means buying an uglier and less functional product, so be it."
If Apple keeps this up they are going to displace Microsoft as the most hated company in tech.

[ Reply to This | # ]

Was that Samsung's mistake?
Authored by: darkonc on Friday, August 31 2012 @ 09:16 PM EDT
Did they not bother to argue that Apple's design patents went beyond the purely ornamental and into the realm of functional issues?

As was pointed out, rectangular units with rounded corners have functional value, not just ornamental.

Powerful, committed communication. Touching the jewel within each person and bringing it to life..

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )