Samsung has created workarounds for the three Apple patents that the jury ruled were infringed, the '381, '163 and '915 patents. The '381 patent is the one that the USPTO just tentatively rejected, due to prior art. But in any case, none of these patents are now being used by Samsung, according to a
declaration [PDF] by Tim Rowden, VP of Product Management at Samsung, just filed with the court. It's in support of Samsung's opposition to Apple's motion asking for a permanent injunction. Obviously, there is nothing to block if Samsung isn't using any of the patents any more.
By the way, did you notice that one of the 65
exhibits attached to the exhibits collection [PDF] that goes with the John Pierce Declaration [PDF] in Support of Samsung's Opposition to Apple's motion [PDF] for judgment as a matter of law is a 610-page collection of excerpts from the transcripts of the trial? Included is some testimony about the '381 patent. Don't read on, if you don't wish to read specifics regarding several patents.
If you go to page 329 of the PDF, you'll find testimony by Dr. Balakrishnan about that patent, telling the jury that without a doubt Samsung infringes claim 19 of Apple's '381 patent. He asserts as well that there is no prior art. The USPTO disagrees with Apple's expert.
Here's a bit of his testimony, beginning on page 315 of the PDF onward, with Apple lawyer Michael Jacobs doing the questioning:
Q: What are you here to talk about? You can almost hear the cash register ringing up the damages. And now all that is in doubt, depending on what the USPTO finally decides and what Judge Koh decides to do about all this.
A: I'm here to talk about the utility patent known as the '381 patent.
Q: Could you introduce yourself to the jury? They've heard your name, but can you describe for them what you do?
A: Sure. I'm a professor the computer science at the Department of Computer Science at the University of Toronto, where I also hold a Canada Research Chair in Human Center Interfaces, and I also co-direct a user interfaces and graphics laboratory at the University
Q: Tell the jury a little bit about your training.
A: I hold three degrees in computer science, including a Ph.D. in computer science, graduated in 2001 from the University of Toronto. And I've since then been a professor at the University since 2001, so that would make it almost 11 years at this point....
Q: What's the next problem that the '381 patent was designed to solve?
A: The second problem is known in the field as a desert fog problem. So this is a bit of the converse of the frozen screen problem in that one could manipulate the image such that it goes off, completely off the screen and you're left with a blank screen, what we would call the desert fog, and you have no idea where the screen is relative to where the photograph is outside the screen. So I prepared a little animation for that as well. As you can see, the photograph is taken off the screen, and now the use is manipulating the desert fog and it's unclear, essentially they pause for a moment, how to bring that photograph back on to the screen. So these are of the two key problems that are found in this kind of navigation interface that the '381 patent is focussed on solving.
Q: And that was PDX 27.25. How does the '381 patent solve these two problems, frozen screen and desert fog?
A: The '381 patent solves both these problems in one fell swoop. Essentially, A, it solves the desert fog problem by not allowing the photograph to go off the screen completely. And the frozen screen problem it solves by when the document reaches the edge, it allows a certain amount of movement beyond the edge, shows an area beyond the edge, so the user knows, I've reached the edge of the document, and then when they release their finger, it bounces back. It gives nice feedback saying "You've reached the edge. The system is still alive. It's not frozen." I prepared an animation to illustrate that as well.
(WHEREUPON, A VIDEOTAPE WAS PLAYED IN OPEN COURT OFF THE RECORD.)
THE WITNESS: As you can see, you've reached the edge of the document. The black area below is shown. Can we show that again, if you don't mind?
(WHEREUPON, A VIDEOTAPE WAS PLAYED IN OPEN COURT OFF THE RECORD.)
THE WITNESS: And when the user releases their finger, it bounces back. So it gives the illusion of a very lively system that's not frozen because the user knows were the edges are and it doesn't disappear in the desert fog.
BY MR. JACOBS: Q: Were these problems recognized in the field before the '381 patent?
A: The two problems were well recognized in the field. In fact, papers were published about it years back.
Q: Did anyone solve it before Apple?
A: No, it did not....
BY MR. JACOBS: Q: Let's turn now to Samsung products and your analysis of how they -- whether they infringe claim 19 of the '381 patent, and let's start with the Samsung Galaxy S II AT&T. Does it infringe Claim 19? The Samsung Galaxy S II AT&T version.
A: YES. INFRINGES....
Q: So based on your review of the code and of the device, what is your concludion as to whether the Samsung Gallery S II, AT&T, infringes claim 19 of the '381 patent?
A: Based on my review of the devices and the code, it is my opinion that the Samsung Galaxy S II, AT&T, infringes Claim 19 of the '381 patent in all three applications.
Q: You analyzed other Samsung phones?
A: Yes, I did.
Q: And does your opinion extend to others of the phones you examined?
A: Yes, 20 other phones also infringe the '381 patent.
Q: Can we show that to the jury?
Q: Okay. So let's look at 27.32. I'm sorry, .33?
A: What I have here is the four other phones, Galaxy S I9000, Galaxy S II I9100, S 4G, and the Vibrant, all showing the same functionality that I went through in detail earlier with the Galaxy S II, and you can see that all of them do the same kind of bouncing.
The transcript goes on and on listing infringement, element by element, of this now-questionable patent. I can't help but wonder about something. Did the jury get to view or hear about the prior art that convinced the USPTO to reject this patent?
The reason I ask is, the request for reexamination that resulted in the tentative rejection yesterdy was filed on May 23rd of this year.
And this transcript is from August 10th. So for sure the Apple lawyers knew about the prior art being asserted. Wouldn't this expert also know? If not, how strange is that? Yet he testified boldly that there was no prior art, that no one had solved what the '381 patent solved until Apple invented the solution. That turns out not to be precisely so, according to the USPTO. Next, Apple gets to respond, and perhaps they'll have more information to show us. But how can you say no, nobody solved this problem, as if it was a settled truth beyond contradiction? Maybe the answer is that patents are so dense and also so boringly and vaguely written that people doze off trying to read and understand them. I know I do.
I'm itching to read the transcripts, though, in full, because while these excerpts are great to have, I wish we could read it all and can't wait to do so. I did search this exhibit for the keywords Lira and Ording, and I found nothing.
Here's the Ording patent, "Continuous scrolling list with acceleration", #7,786,975. Its claims include this:
A list of items on the touch-sensitive display is scrolled in response to the movement (112). One or more of the following operations may occur. In response to a first accelerated movement of the point of contact and optional breaking of the point of contact, the scrolling may accelerate (114). In response to a second accelerated movement of the point of contact and optional breaking of the point of contact, the scrolling may further accelerate (116). A direction of the scrolling may reverse when the scrolling list intersects a virtual boundary corresponding to a terminus of the list (118). For example, when the list is scrolled to its beginning or end, the scrolling list may appear to bounce again at a boundary and reverse direction. After the bounce or scrolling direction reversal, the scrolling may automatically stop so as to leave the first or last item of the list in view on the touch-sensitive display. The scrolling may stop when the user breaks the point of contact (e.g., by lifting his/her finger off the display) and then establishing a substantially stationary point of contact for at least a pre-determined period of time (120). In other embodiments, the method 100 may include fewer operations or additional operations. In addition, two or more operations may be combined and/or an order of the operations may be changed. Bas Ording "invented" Apple's '381 patent as well, as
you can see here. So how could Apple not know about his earlier patent that the USPTO found convincingly prior art, particularly since Scott Forstall is listed as another of its inventors? Apple had to know about it. Maybe they think it's not precisely on point? Maybe there is another explanation that we'll learn about in Apple's response, but at the moment, I am deeply puzzled by the trial testimony.
And you can find the Lira application filed with the European Patent Register. It's #WO03081458(A1). But here it is [PDF], for your convenience. The description:
Viewing an electronic document in a display window of a display may include detecting a layout of the electronic document (505) and comparing the layout of the electronic document to a width of the display window (510). The electronic document may be reformatted into at least two columns, with each of the columns having a width that does not exceed a width of the display window (515). Navigating on the display may include tracking motion of an input tool on a display, comparing a motion of the input tool to a threshold, and changing a position of the visible portion of a page of information on the display if the input tool motion exceeds the threshold. The position of the visible portion of the page of information on the display may be constrained if the motion does not exceed the threshold. Navigating on a display also may include tracking coordinate information of an input tool on a display and moving a visible portion of a page of information on the display a distance equal to a change in the coordinate information of the input tool multiplied by a multiplier. Navigating on a display also may include providing a navigation control operable to change a viewable portion of a page of information on a display from a first view to a second view. In response to operation of the navigation control, the display may be animated to create an appearance of motion as the viewable portion of the page of information changes from the first view to the second view in response to operation of the navigation control.
See what I mean?
Here are the latest filings in the post-trial phase of Apple v. Samsung:
Filed & Entered: 10/20/2012I don't know what happened to docket number 2077. Maybe it will show up later.
Proposed Order re  MOTION Cross-Use of Discovery Materials From Case No. 12-630 by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 10/20/2012)
Filed & Entered: 10/20/2012
Proposed Order re  MOTION to Shorten Time For Briefing on Motion for Cross-Use of Discovery by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 10/20/2012)
Filed & Entered: 10/21/2012
Declaration of Tim Rowden in Support of  Opposition to  TO APPLE'S MOTION FOR A PERMANENT INJUNCTION AND DAMAGES ENHANCEMENT, AND APPLE'S MOTION FOR JUDGMENT AS A MATTER OF LAW (RENEWED), NEW TRIAL, AND AMENDED JUDGMENT filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s), ) (Estrich, Susan) (Filed on 10/21/2012) Modified text on 10/22/2012 (dhmS, COURT STAFF).
Filed & Entered: 10/21/2012
Declaration of Hankil Kang in Support of  Administrative Motion to File Under Seal filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Related document(s)) (Maroulis, Victoria) (Filed on 10/21/2012)
Filed & Entered: 10/22/2012
ORDER by Judge Lucy H. Koh Setting Briefing Schedule for Cross-Use of Discovery Materials (lhklc2, COURT STAFF) (Filed on 10/22/2012)
Filed & Entered: 10/22/2012
STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d filed bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit A)(Related document(s)) (Maroulis, Victoria) (Filed on 10/22/2012)
Filed & Entered: 10/23/2012
ORDER SETTING DEADLINE TO FILE DOCUMENT re  Motion Hearing, Terminate Motions. Signed by Judge Paul S. Grewal on October 23, 2012. (psglc2, COURT STAFF) (Filed on 10/23/2012)
Filed & Entered: 10/23/2012
MOTION for Reconsideration re  Motion Hearing, Terminate Motions,, MOTOROLA MOBILITY LLC'S MOTION FOR RELIEF FROM NONDISPOSITIVE ORDER OF MAGISTRATE JUDGE filed by Motorola Mobility LLC. (Attachments: # (1) Declaration of Peter J. Chassman, # (2) Proposed Order, # (3) Certificate/Proof of Service)(Golinveaux, Jennifer) (Filed on 10/23/2012)
We also find out what discovery materials Samsung would like to use from the other Apple v. Samsung trial in the same court with the same judges, which I call Apple v. Samsung II. The list [PDF] is not immediately meaningful to me, but I'm sure eventually we'll find out what each piece is for. Samsung has asked for expedited briefing, and the judge has ordered [PDF] Apple to respond. There will be no hearing on it and no reply by Samsung, because it waived it.
Here's the list of discovery materials Samsung would like to use:
(1) Deposition of Greg Joswiak, April 17, 2012, pp. 17-20, 26;
And the magistrate judge has ordered [PDF] the parties, once again, to unseal certain documents he'd ordered unsealed by now. This affects Motorola, who immediately filed a motion for relief [PDF] with Judge Lucy Koh, who is the presiding judge in the case, meaning she can overrule the magistrate's order. Motorola argues that the magistrate's order conflicts with orders by Judge Koh, who already allowed the redaction of certain financial details that the magistrate now is ordering made public. These judges need to talk. I don't think it's too hard to figure out what Motorola thinks of what goes on in that US District Court in California in this case.
(2) Deposition of Arthur Rangel, April 5, 2012, pp. 81, 123-125, 128-129;
(3) Deposition of Mark Buckley, April 10, 2012, pp. 37, 75-76, 88-89;
(4) “N94 launch pad,” July 12, 2011, APLNDC630-0000128707-766;
(5) “Sustaining momentum throughout the product cycle – Increasing share of first-time
smartphone users,” APLNDC630-0000128922-944;
(6) “US First Time Smartphone Buyer Analysis,” February 2012, APLNDC630-
(7) “2012 Mobile Future in Focus, Key Insights from 2011 and What They Mean for the
Coming Year,” February 2012, APLNDC630-0000134690-738; and
(8) “iPhone Buyer Survey,” FY12-Q1, APLNDC630-0000149471-605.