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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.

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