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Category Archive for ‘lawsuit’ rss

Bose Files Lawsuit Against Beats, Citing Five Patent Infringements

Now that the dust has settled in the wake of Apple’s widely publicized announcement of its acquisition of Beats Electronics (which still has yet to close), the Cupertino company’s starting to learn that it brought some unexpected baggage with it. Bose today filed a lawsuit against Beats, claiming that the company infringed on five of the company’s patents.

As reported by TechCrunch, Bose alleges that Beats’ headphones, many of which claim to support “Adaptive Noise Cancellation,” draw heavily from Bose’s more than 50 years of research into the design of its QuietComfort noise-cancellation headphones.

The patents in question include United States Patent No. 6,717,537, or “Method and Apparatus for Minimizing Latency in Digital Signal Processing Systems;” Patent No. 6,717,537, or “Method and Apparatus for Minimizing Latency in Digital Signal Processing Systems,” Patent No. 8,073,151: “Dynamically Configurable ANR Filter Block Technology;” Patent No. 8,054,992: “High frequency Compensating;” and No. 8,345,888 – “Digital High Frequency Phase Compensation.”

And Bose isn’t kidding around. The well-known audio company wants Beats to stop producing headphones that infringe on Bose’s patents, and the company’s even gone so far as to request a ban on offending Beats products from the International Trade Commission.

Bose also responded to TechCrunch with a statement that read as follows: “The filing is comprehensive and explains our position, and as a matter of practice, we don’t comment on on-going litigation. We can share that for over 30 years, Bose has made significant investments in the research, development, engineering and design of the proprietary technologies found in our headphones. Bose’s patented technologies enable the exclusive performance found in our QuietComfort® Acoustic Noise Cancelling® headphones. We are committed to protecting our investment, protecting our customers, and defending the patents we own.”

Follow this article’s writer, Leif Johnson, on Twitter.

Trolls Love the Taste of Apple; Here's Why

Law & AppleWhen patent trolls are hungry, they reach for Apple. And when they do, they often get fed. In the bizarre world of US patent law, even when your case has little merit, you’re probably going to get paid anyway.

Apple vs. Trolls

The Chicago Tribune put together a great report detailing several recent public statements from Apple that support the claim that Cupertino is the most favored target of patent trolls. 

Patent trolls are known in the industry (which can’t call them “patent trolls” in court) as Patent Assertion Entities, or PAEs. They do not invent or create anything, they don’t manufacture anything, they don’t even sell anything. All they do is buy patents so they can take other companies to court.

According to Apple, patent trolls “do nothing more than acquire vague patents, and then use litigation or the threat of litigation to negotiate royalties that are far larger than what the patents warrant.”

In a filing to the Federal Trade Commission, Apple stated that “No firm has been targeted by PAEs more than Apple.” Apple further stated that it has had to battle patent trolls “92 times in the past three years alone,” which is more than any other tech company.

Apple, as we cover in this space every week, generally has its act together in court. The Cupertino legal team is a finely tuned machine, and it’s very uncommon to see them lose in court. So why would patent trolls keep coming after them?

In an amicus brief for an upcoming Supreme Court case, Apple puts the issue into sharper relief: “Apple has rarely lost on the merits. But victory figures as small consolation, because in every one of these cases, Apple has been forced to bear its legal fees. This reality is the lifeblood of the patent assertion industry…”

While it stings to pay trolls cash when they’re threatening you with a bogus lawsuit, it’s sometimes the only smart thing to do, since you have to pay your lawyers whether you win or lose. Too often, it’s cheaper to feed the troll with cash than to go to court, even when you’re right. Even when you win.

Trolling

Trolling Apple in court: good work if you can find it.

“Indeed, the opening line of many negotiations is some form of, ‘What we’re asking for is less than it will cost you to litigate this case to judgment,’ Apple stated. So how often does Apple just pay to make the troll go away?

Out of the most recent 92 cases, Apple has resolved 57 of them. In 51 of those cases, Apple just decided to settle with the troll to avoid legal costs, despite a firm belief that it had not infringed any patents; in the other six cases, the troll either lost or quit.

So, 51 wins for the trolls out of 57; that’s a winning percentage of 89.5 percent. Easy money. But what is the real cost to this nonsense?

According to one Apple brief, patent trolls “have become a drag on technological innovation, inflicting billions of dollars in deadweight losses every year.”

The reason we’ve received this rare insight into the inner workings of Apple is because it’s one of several tech companies — including Netflix, Facebook. LinkedIn, and Google — that have filed briefs for the upcoming Supreme Court case Highmark v. Allcare Management Systems. If the SCOTUS rules in favor of the Apple and the rest, it will make it easier to collect attorney fees from trolls that lose in court.

That alone might be enough to encourage companies to fight back against trolls, which would certainly be enough to make trolls run and hide. Because right now, having to pay your lawyers to argue an absurd case in court doesn’t make a lot of sense. Right now, feeding the troll is often the only way to win.

Connect with this writer, Adrian Hoppel, through his website: adrianhoppel.com

The 10 Hottest Apple News Stories, The Week of February 21

Good old, Steve Jobs is back in the news this week with two stories. You want to know why Apple TV hasn’t been kicking butt lately? No Steve is the answer there. But if you need your Steve fix, just take a jaunt down to the post office. Meanwhile, who’…

How Many Retrials Does Samsung Want? Infinity Retrials.

We are just a few weeks away from the second major Apple v. Samsung trial to happen in Northern California, but we still haven’t wrapped up the first one. Why does Samsung think it should get a re-trial of the last re-trial, and what does the judge thi…

The Licensing Agreement between Google and Samsung Changes Nothing. Here's Why

A few days ago, Google and Samsung announced a surprising 10-year global patent licensing agreement. Mostly it was surprising because Samsung suing Google for patent infringement is about as likely as you suing your parents for patent infringement. So …

You Won't Believe Google's Latest Hypocrisy

Law & Apple

Google formed with an internal motto of “Don’t Be Evil” in response to the perceived business practices of Microsoft, and then proceeded over the years to manipulate customer data (see what Google does when you search) and force software on users (see how you are already signed up for Google+) much like Redmond. Now the Mountain View company is taking hypocrisy to a new level with their latest lawsuit against the Apple- and Microsoft-led Rockstar Consortium. Ah, the irony!

Google vs. Rockstar

Last week Google filed a lawsuit in the Northern District of California against Rockstar and its subsidiary, MobileStar Technologies. The case was brought in response to a series of lawsuits Rockstar filed in October 2013 in the Eastern District of Texas against Google and seven of its Android hardware partners: Samsung, Huawei, ZTE, LG, HTC, Pantech, and ASUSTeK.

The Rockstar lawsuit against Google focused on search engine use, and also included actions against the Android manufacturer for a variety of hardware and software issues. Google’s response, however, is an attempt to block and disrupt that lawsuit, based on lots of fancy talk about what a rotten patent troll Rockstar is.

Many bloggers around the internet have taken the bait and attempted to turn this story into a “Google against Apple’s Patent Troll” hero’s journey, but the facts suggest something ironically different.

Patent Troll

Patent troll? You keep using that word. I do not think it means what you think it means.

Rockstar was formed by Apple, BlackBerry, EMC, Ericsson, Microsoft, and Sony to purchase the patents of dying tech star Nortel in July of 2011 for $4.5 billion. Google is attempting to spin this event as an example of patent trolling, while ignoring the fact that it was the company that overinflated the price for these patents in the first place.

Google went hard after the Nortel patents, opening with a $900 million bid that sounded alarm bells across the industry. It was clear what Google wanted to do with these patents: use them to force Apple to stop suing Android manufactures. Google bid as high as $4.4 billion for the patents. No other single company wanted to pay as much as Google to gain these patents, but by joining together and forming Rockstar, they were able to cobble together a winning bid of $4.5 billion.

But Google was not finished there; the Mountain View company went on to buy the remains of Motorola for $12.5 billion and has tried unsuccessfully to use those patents to sue Apple and other members of Rockstar. To date, the Motorola purchase has been a total bust for Google in the courtroom.

And that isn’t even the extent of Google’s use/misuse of the patent system to protect itself. As Florian Mueller points outs in an op/ed piece for The Hill from this past November, Google “bought roughly 2,000 patents from IBM, and smaller quantities from failed startups and entities it now denounces as ‘trolls’, such as Mosaid, against which it later brought an antitrust complaint in the European Union. Another ‘troll’, Intellectual Ventures, had received one of its first investments ever from Google.”

Google has been aggressive in seeking out patents to use as leverage against other companies since the release of Android, which Mueller correctly states was released “in 2007, using — but not licensing — Apple’s multi-touch interface concepts, Microsoft’s operating system technologies, Oracle’s Java programming language, and probably also some other players’ inventions.” The fact is, using other company’s patents without paying for them, and then manipulating the patent system to cover its tracks, is simply what Google does.

Clearly, the patent system in the U.S. is broken, and clearly all of the major companies in the tech industry attempt to leverage it agains their competitors. But at this point, for Google to play the part of the victim against a big bad Apple patent troll is almost as absurd as the bloggers that are regurgitating the Mountain View propaganda.

Connect with this writer, Adrian Hoppel, through his website: adrianhoppel.com

Law & Apple: Apple Asks Samsung to Go Dutch on Legal Fees

Law & AppleNow that Apple has proven in court that Samsung slavishly copied the iPhone, and proved it twice, we have approached the part of the event where everyone scrambles to figure out who owes what part of the bill. Like two people on a blind date gone bad, Apple and Samsung both want to go home without paying any more than they have to. Here’s hoping they just use one credit card for the bill, because people who give the waiter a handful of plastic to ring up separate amounts are totally annoying. Don’t do that. So, what’s the damage? Read on.

Apple vs. Samsung

Apple incurred over $60 million in costs and legal fees to prove in court what was fairly obvious at a glance: that Samsung copied the iPhone. Now, according to The San Jose Mercury News, Apple wants a federal judge to order Samsung to pay about a third of the bill.

Apple has determined that $16 million of the legal fees should totally be paid by Samsung, and also added an additional $6.2 million to cover a variety of other expenses. That’s over $22 million, before the tip.

In asking the court to “award Apple fees in this exceptional case” Apple made the argument that making Samsung pay some of Cupertino’s bills was an obvious course of action, that it “‘flows quite naturally’ from the jury’s willfulness verdict as well as Samsung’s extensive record of willful, deliberate and calculated decisions to copy the iPhone, in blatant disregard for Apple’s (intellectual property).” 

Samsung CEO

When does this end?

U.S. District Judge Lucy Koh, the primary judge in most of the Apple v. Samsung cases to date, is scheduled to rule on this request during a hearing in January. Should Judge Koh rule for Apple, it will set a precedent that will make the newest case between Apple and Samsung, scheduled to being in March 2014, even scarier for Samsung.

Also, Apple made it clear that these charges do not include what was billed to them for arguing in the last damages retrial. So, again, Judge Koh’s ruling in January could become an ongoing cash drain for Samsung.

Ultimately, the winners in this case are Apple’s law firms, Morrison & Foerster and Wilmer Hale (the website for the former is mofo.com — I know, right?), and you can rest assured that they will be getting paid one way or another.

Clearly, Apple will continue to make this as painful as possible for Samsung. Having already forced Samsung to redesign its devices, the ultimate goal for Cupertino would have to be for Samsung to settle out of court and agree to a licensing agreement, effectively putting an end to the Patent Wars. To that end, it appears Apple is taking the strategy of “Every Dollar Counts!” Time will tell if this will work, but it seems advantageous, in any event, to have the MoFo legal team on your side.

Connect with this writer, Adrian Hoppel, through his website: adrianhoppel.com

Law & Apple: Apple Wins Two Dismissals in Consumer Lawsuits

Law & AppleLast week, federal courts dismissed two consumer lawsuits against Apple, one dealing with privacy issues, the other dealing with antitrust issues. In both cases, consumers were seeking monetary damages from Apple, and in both cases, judges decided they’d heard enough and sent everyone home. Once again, we see that suing Apple over imaginary injuries is not a very effective get-rich-quick scheme.

Consumers vs. Apple (Privacy!)

Reuters reports that U.S. District Judge Lucy H. Koh dismissed a lawsuit brought by consumers against Apple Inc. over privacy concerns, saying the plaintiffs had failed to demonstrate they had relied on any alleged company misrepresentations or that they had suffered real harm whatsover.

The lawsuit originated in 2011, when the four plaintiffs claimed that Apple designed iOS to easily send personal information to third parties, and that this action violated Cupertino’s privacy policy.

Somehow, according the lawsuit, this alleged action caused the plaintiffs to pay too much money for their iPhones, as well as to lose valuable storage space on their devices.

Win Apple's Money!

Is that is your final argument?

Oh, so sorry. See, kids, to win an argument like this in court, you really need to show that you were tricked, and that the trickery cost you some dough. As Judge Koh put it,”Plaintiffs must be able to provide some evidence that they saw one or more of Apple’s alleged misrepresentations, that they actually relied on those misrepresentations, and that they were harmed thereby.”

And then Judge Koh just dismissed the case outright. Thanks for playing “Who Wants To Win Apple’s Money?” and better luck next time!

Consumers vs. Apple (Monopoly!)

Next up, a group of consumers claimed that by charging 30 percent on apps sold in the App Store, Apple created a monopoly that overcharged people hundreds of millions of dollars. If Apple did not impose this “fixed” fee, according to the complaint, then consumers would pay less for apps.

According to a report from Bloomberg, U.S. District Judge Yvonne Gonzalez Rogers tossed this case out of court, ruling that consumers don’t have the right to sue for antitrust violations over such passed-on charges.

Win Apple's Money!

You should have used a lifeline!

Judge Rogers stated that since the 30 percent fee is not charged by Apple directly to consumers, the cost is then assumed to be passed on by app developers. “Any injury to plaintiffs,” Judge Rogers stated, “is an indirect effect resulting from the software developers’ own costs.”

A lawyer for the plaintiffs, Alexander Schmidt, plans to appeal the decision to a federal appeals court in San Francisco, which has previously allowed cases like this to proceed. “It’s clear to us,” Schmidt stated, “that a consumer that buys a monopoly priced product directly from a monopolist is a direct purchaser.”

So, this contestant is doubling down, and we are off to Round Two of “Who Wants To Win Apple’s Money?”.

It seems this game has some legs, even if the odds of winning are low. Just in the last few weeks, we’ve seen people claiming the iMac is a lemon, a man suing Apple because he hates iOS 7, and an engineer who sued Apple claiming he invented the iPhone first. The quest for Apple’s gold never ends, it seems. See you next time!

Connect with this writer, Adrian Hoppel, through his website: adrianhoppel.com

Law & Apple: Man Claims He Invented Smartphone, Court Disagrees

Law & AppleAn electrical engineer filed a lawsuit against Apple in California, claiming that he invented the smartphone and Apple was infringing on his idea. The jury sided with Apple, but it wasn’t as clear-cut as you might think. Was this another case of a patent troll trying to score big against Apple, or was it a case of a deep-pocketed corporate behemoth crushing the little guy? Read on.

NetAirus vs. Apple

Bloomberg reports that a federal jury decided Apple did not infringe on a patent holder who claims to have invented the smartphone. NetAirus Technologies LLC, a company owned by Richard L. Ditzik, was seeking damages from Apple over sales of the iPhone 4 since last October, when NetAirus’ patent was recertified with new language. It was that change in language that perhaps swung the court in Cupertino’s favor.

During the trial, Apple argued that the original patent application from NetAirus was for “a handset that used a laptop computer to make phone calls.” Apple claimed that it was only after reading about additional features already on the market, like the handset serving as a PDA and being able to send and receive email, that NetAirus revised its patent and went after the iPhone in court.

Seemingly, this appears to be another case of someone with a dubious patent trying to strike it rich against Apple in court; this is not the first case like that, nor will it be the last. So why was the jury deadlocked for days over this particular case, and why do some jury members lament having to side with Apple?

David and Goliath
What if Goliath was right? Does that make it OK? (Image source: Tuomas Korpi/Piñata)

The jury was deadlocked for three days, claiming that they were unable to reach a unanimous decision over the issue of if Apple had infringed on the patents, and if so, what the damages should be. Finally, attorneys for both sides agreed to accept a majority decision from the jury, and Apple prevailed. So what was the holdup?

According to juror George Escarrega, several of the jurors felt that “we were failing in doing everything we could for the system and for the inventor,” and that there “was an aspect to the case that Apple was this giant crushing the little guy.”

After the verdict, Escarrega wished “to find some way” to compensate Ditzik, opining that “the giant has more resources than the little guy and the little guy needs somebody to fight for him.” Ultimately, Escarrega continued, that desire to fight for the underdog “needs to be justified” and in this case, the law clearly favored Cupertino.

Ditzik and his lawyer stated that they were disappointed with the verdict and are considering options to appeal, while Apple did not comment after the ruling at all.

We’ve discussed how the U.S. patent system is nothing short of broken, and its dual purpose — to encourage innovation while protecting the work of the inventor — is a challenge to balance fairly. However, a desire to help the little guy against the giant corporation is not justification in and of itself. No matter the best intentions of the jury, and no matter how much some of the members wanted to rule for Ditzik, it appears in this case they (eventually) got it right.

Connect with this writer, Adrian Hoppel, through his website: adrianhoppel.com

Jury selection for Apple, Samsung damages retrial complete

The damages retrial between Apple and Samsung will begin today following Tuesday’s successful jury selection. Reuters is reporting that out of dozens of jurors interviewed by lawyers for the two tech companies, they were able to settle on six women a…

Law & Apple: Man Hates iOS 7, Sues Apple

Law & AppleSome people really have a hard time dealing with change. It seems whenever a popular software platform releases a new version, the interwebs are flooded with people whining about how much better everything was before (we’re looking at you, people on Facebook). Usually, when the next update comes around, these are the same people complaining about the changes again, and the irony there speaks for itself. With the recent release of iOS 7, the biggest change to iOS since its inception, Apple certainly opened itself up to those who love to complain about anything new or different, and the criticisms had to be expected. But was Cupertino prepared for one hater to lawyer up?

Menacher vs. Apple and Tim Cook

Mark David Menacher is mad. Really mad. Apparently, Apple was trying to give him a massive software upgrade for his iPhone that would include new technology and cutting-edge design, but Mr. Menacher wants none of it. In fact, he wants no mention of the latest software on his iPhone, and thinks Apple should throw $50 his way just for the trouble of being told about it.

Clearly beloved by most iPhone users, as demonstrated by a smoking install rate of over 64 percent in just a few weeks (72 percent and climbing according to this live tracker), iOS 7 is the “biggest and fastest software upgrade in History” according to Apple CEO Tim Cook. But make no mistake: iOS 7 is drastically different in design from its predecessors, and when you get into the question of what makes good design, everyone often has an opinion.

Mr. Menacher does not like or want iOS 7. But what really has him up in arms is the way Apple is insisting that he does want it, and that he will like it. Apple employs a strategy for over-the-air updates that automatically installs the new software, occupying up to 1GB of space on the device, and then prompts the user at every restart to install. So, imagine if you didn’t want the upgrade, but had to give up a big chunk of space for it anyway, and then you had to continually decline it. Like a lot of content iOS 6 users, you might get get pretty annoyed, too.

But mad enough to sue?

Tim Cook

Just install it. Now.

According to his statement, Mr. Menacher believes that “Apple’s disregard for customer preferences in relation to iOS 7 is corporate thuggery.” Further, he believes that it is Tim Cook instilling this bully-the-customer attitude, which in his opinion is a catastrophic philosophical change from Steve Jobs, who according to Mr. Menacher only maintained a bully-the-employee attitude.

“Steve Jobs was reportedly rough on company employees in pursuit of happy customers,” Mr. Menacher stated, “but Tim Cook apparently cultivates a culture of contempt for customer satisfaction in pursuit of corporate profits.” Mr. Menacher also stated his opinion that this strategy would fail.

Mr. Menacher, who originally filed his lawsuit in small claims court, seeks the removal of the installer file, as well as $50.

As is the case with any popular software upgrade, the people who don’t like it are loud and proud, acting as if they have some ownership of the previous software and demanding that their aesthetic opinion be recognized and the software be reverted to the way it was before. In this day of licensed software, the question of who actually owns the software once it is installed remains somewhat nebulous. 

Does Apple have the right to demand you upgrade to their latest operating system, and can they hold a gig of space hostage until you do? Does the end user maintain any legal control of the way software licensed form another company functions on their device? And what, exactly, does Mr. Menacher need $50 for?

We’ll have to wait for the trial, scheduled for January of 2014, to find out these answers.

Connect with this writer, Adrian Hoppel, on his website: adrianhoppel.com.

Law & Apple: Steve Jobs Ruins Apple's Position in Lawsuit

Law & Apple

When Tim Cook led the big Apple Event last month announcing the new iPhone 5c and iPhone 5s, a lot of comparisons to his predecessor were made. Almost universally, it was declared once again that Tim Cook lacks whatever magic Steve Jobs had on stage. However, perhaps Tim Cook will do a better job of not breaking future patents with his lack of stagecraft; sometimes the ability to project a powerful “reality distortion field” has unintended consequences.

Apple vs. Samsung

In 2007, when Jobs got up on stage to unveil the first iPhone, how could he know that one of the funniest lines he delivered would completely derail a patent case six years later? Well, he should have, or at least the Cupertino legal team should have before they approved the slides for the presentation, because U.S. patent law is very different from the rest of the world — as Apple was just reminded the hard way.

Last Thursday, Florian Mueller of FOSS Patents reported that the Federal Patent Court of Germany ruled for Samsung and Motorola (Google) by declaring a key Apple iPhone patent invalid. The patent, EP2059868, covering a “portable electronic device for photo management”, is part of the “rubber banding” patents that Apple has been using so effectively in the Patent Wars.

So why did the German court invalidate the patent? Because Jobs went for the cheap laughs during the original iPhone unveiling and joked that Apple had already extensively patented the iPhone, when it hadn’t yet. And that was fine in the U.S., where Apple had 12 months to file patents after the public announcement; in Europe, however, patents are treated very differently.

U.S. patent law has traditionally favored the “first to invent,” while Europe has traditionally favored the “first to file.” A detailed breakdown of the difference can be read here, but the short answer is that in the U.S., if you could prove that you invented something first, you won in court, while in Europe, if you filed the patent first, you won in court. With the American Invents Act that was passed this past March, the U.S. has also switched to more of a “first to file” system, but when Jobs was on stage in 2007 he had every reason to believe the iPhone patents were protected so long as they were filed within 12 months of the presentation. And he was right — in the U.S.

In Europe, however, as Mueller points out, “even an inventor’s own public demos could always be held against his own patents if they took place before the filing of an application.” Jobs’ presentation became prior art to the court in Europe; Apple could not claim a valid patent because they introduced the technology to the public without a patent in place. Perhaps the Apple lawyers forgot about this detail, or perhaps Jobs didn’t care and wanted to use the line anyway; we’ll likely never know. However, the lawyers for Samsung and Motorola remembered this detail, and used it to win the day last week, taking away a major Cupertino weapon.

Samsung CEO

You’ve got to admit…this one is kind of sweet.

Apple has still many other perfectly valid patents in play in this case, and is likely to prevail in this case. But this one has to sting a little bit, and also helps to put into perspective that being a little more subdued and professional is probably a better long-term strategy.

Those who love Apple all miss the genius and energy of Steve Jobs, but you’d be really surprised to see this kind of mistake happen under Tim Cook’s watch.

Connect with this writer, Adrian Hoppel, through his website: adrianhoppel.com

Law & Apple: Don't Call Samsung Names, Broken Breaking Bad Fixed

Law & AppleWhen the jury gathers in November to determine the new amount that Samsung owes Apple for copying the iPhone and iPad, Samsung would like it very much if no one was allowed to tell the jury about how it copied the iPhone and iPad. Also, Apple has decided to break down and take care of Breaking Bad viewers who didn’t know they had to pay twice for the final season. Another week of adventures for the Cupertino legal team!

Apple vs. Samsung

Last summer, after a much-hyped trial between Apple and Samsung, a jury awarded Cupertino over $1 billion in damages. Later in the year, about $400,000 of that damage award was vacated, which many took as a victory for Samsung. It wasn’t, particularly when Judge Koh ordered a new trial to define those damages.

When the damages were vacated, it set the stage for a new hearing to determine if that $400,000 portion of the award should be lessened, maintained, or increased. See, while Samsung would like to see the award disappear, that is just not going to happen. When Samsung sought a full retrial this past spring, the request backfired, and they only achieved a limited retrial against Apple, which actually is in Apple’s favor. And while Apple has said from the get-go that it would like to see the award increased, that is actually more likely now than ever.

“Samsung actually wanted a full retrial including a reevaluation of the underlying liability issues,” writes Florian Mueller of FOSS Patents. “Now it gets a retrial with a set of parameters that makes it anything but unlikely that Apple may achieve an increase of the total damages award.”

Samsung CEO

We can’t win for losing.

Since Apple is going to go hard for an increased award, Samsung is going into preemptive damage control. Last Monday, both companies filed a flurry of motions attempting to define what the other could and could do and say in the new hearing, which is normal. What is particularly interesting, however, is that Samsung filed two different motions, each trying to prevent Apple from attempting to “inflame the jury with irrelevant testimony relating to infringement, validity, ‘copying,’ and IP rights that are not at issue in the retrial.”

Certainly Samsung wants to prevent Cupertino lawyers from filling the courtroom with evidence about how Samsung systematically copied Apple, because when you look at all of the evidence, it really doesn’t look good for Samsung. However, Judge Koh has stated she does not want this hearing to be a “Groundhog Day” version of the first trial, so it is likely that at least part of Samsung’s request will be granted.

Apple will likely be prevented from presenting evidence about Samsung copying that does not directly speak to issues related to this particular hearing. But, the issues in this hearing still leave plenty of opportunity for Apple to explain to the jury how Samsung slavishly copied its products.

Apple vs. Breaking Bad Customers

Two weeks ago, we discussed a new class action lawsuit being brought against Apple because of the way the popular cable TV show, Breaking Bad, was being sold on iTunes. Customers who purchased what they believed to be the full final season were being told that, since network AMC split the final season over two years, that they would have to buy both halves separately.

The person who brought the lawsuit, Ohio doctor Noam Lazebnik, stated that he “relied upon Apple’s promise that the Season Pass would include all current and future episodes of season five.” We hoped that the lawsuit would win “relief for the beleaguered fans and some clarity for how seasons are sold moving forward.”

As we reported earlier this week, It appears both of those wishes were granted.

Tim Cook Breaking Bad

Here. Just take the money and go.

Apple decided to get out in front of the lawsuit before things got ugly, and offer customers full refunds. In an email sent to people who purchased a Season Pass for the final season of Breaking Bad, Apple writes, “Dear Customer, We apologize for any confusion the naming of “Season 5″ and “The Final Season” of Breaking Bad might have caused you. While the names of the seasons and episodes associated with them were not chosen by iTunes, we’d like to offer you “The Final Season” on us by providing you with the iTunes code below in the amount of $22.99.  This credit can also be used for any other content on the iTunes Store. Thank you for your purchase.”

Clearly, now we know that the breaking up of the final season, and the decision to sell them as separate seasons, came from AMC. And we also know that Apple can see a PR nightmare forming around the most popular show on TV, and is willing to throw cash at the problem to make it go away.

Connect with this writer, Adrian Hoppel, through his website adrianhoppel.com.

Law & Apple: Don't Call Samsung Names, Broken Breaking Bad Fixed

Law & AppleWhen the jury gathers in November to determine the new amount that Samsung owes Apple for copying the iPhone and iPad, Samsung would like it very much if no one was allowed to tell the jury about how it copied the iPhone and iPad. Also, Apple has decided to break down and take care of Breaking Bad viewers who didn’t know they had to pay twice for the final season. Another week of adventures for the Cupertino legal team!

Apple vs. Samsung

Last summer, after a much-hyped trial between Apple and Samsung, a jury awarded Cupertino over $1 billion in damages. Later in the year, about $400,000 of that damage award was vacated, which many took as a victory for Samsung. It wasn’t, particularly when Judge Koh ordered a new trial to define those damages.

When the damages were vacated, it set the stage for a new hearing to determine if that $400,000 portion of the award should be lessened, maintained, or increased. See, while Samsung would like to see the award disappear, that is just not going to happen. When Samsung sought a full retrial this past spring, the request backfired, and they only achieved a limited retrial against Apple, which actually is in Apple’s favor. And while Apple has said from the get-go that it would like to see the award increased, that is actually more likely now than ever.

“Samsung actually wanted a full retrial including a reevaluation of the underlying liability issues,” writes Florian Mueller of FOSS Patents. “Now it gets a retrial with a set of parameters that makes it anything but unlikely that Apple may achieve an increase of the total damages award.”

Samsung CEO

We can’t win for losing.

Since Apple is going to go hard for an increased award, Samsung is going into preemptive damage control. Last Monday, both companies filed a flurry of motions attempting to define what the other could and could do and say in the new hearing, which is normal. What is particularly interesting, however, is that Samsung filed two different motions, each trying to prevent Apple from attempting to “inflame the jury with irrelevant testimony relating to infringement, validity, ‘copying,’ and IP rights that are not at issue in the retrial.”

Certainly Samsung wants to prevent Cupertino lawyers from filling the courtroom with evidence about how Samsung systematically copied Apple, because when you look at all of the evidence, it really doesn’t look good for Samsung. However, Judge Koh has stated she does not want this hearing to be a “Groundhog Day” version of the first trial, so it is likely that at least part of Samsung’s request will be granted.

Apple will likely be prevented from presenting evidence about Samsung copying that does not directly speak to issues related to this particular hearing. But, the issues in this hearing still leave plenty of opportunity for Apple to explain to the jury how Samsung slavishly copied its products.

Apple vs. Breaking Bad Customers

Two weeks ago, we discussed a new class action lawsuit being brought against Apple because of the way the popular cable TV show, Breaking Bad, was being sold on iTunes. Customers who purchased what they believed to be the full final season were being told that, since network AMC split the final season over two years, that they would have to buy both halves separately.

The person who brought the lawsuit, Ohio doctor Noam Lazebnik, stated that he “relied upon Apple’s promise that the Season Pass would include all current and future episodes of season five.” We hoped that the lawsuit would win “relief for the beleaguered fans and some clarity for how seasons are sold moving forward.”

As we reported earlier this week, It appears both of those wishes were granted.

Tim Cook Breaking Bad

Here. Just take the money and go.

Apple decided to get out in front of the lawsuit before things got ugly, and offer customers full refunds. In an email sent to people who purchased a Season Pass for the final season of Breaking Bad, Apple writes, “Dear Customer, We apologize for any confusion the naming of “Season 5″ and “The Final Season” of Breaking Bad might have caused you. While the names of the seasons and episodes associated with them were not chosen by iTunes, we’d like to offer you “The Final Season” on us by providing you with the iTunes code below in the amount of $22.99.  This credit can also be used for any other content on the iTunes Store. Thank you for your purchase.”

Clearly, now we know that the breaking up of the final season, and the decision to sell them as separate seasons, came from AMC. And we also know that Apple can see a PR nightmare forming around the most popular show on TV, and is willing to throw cash at the problem to make it go away.

Connect with this writer, Adrian Hoppel, through his website adrianhoppel.com.

Law and Apple: Cable Company Calls Offsides Against Soccer App

Law & AppleIt’s no secret that Apple heavily controls which apps are approved for download or sale in the iOS App Store. To some, Cupertino controls so much that it’s a point of criticism, as they claim Apple maintains a walled-in garden that prevents innovation. Many others, however, enjoy the high-quality apps that are safe and work flawlessly with their devices. The issue becomes much more fuzzy, however, when Apple approves an app that violates someone’s intellectual property or rights; if damages were incurred, who should pay? Invariably, Apple, along with its golden checkbook, is called onto the legal pitch, which is just what happened a few days ago in Thailand. Will Apple escape with just a yellow card, or will it settle this dispute with a penalty check?

Cable Thai Holding vs. Apple

Thai cable company Cable Thai Holding (CTH) is suing Apple for approving an app that streams UK Premier League (EPL) soccer games to the iPhone and iPad, according to the Bangkok Post. CTH paid over ฿14 billion Thai Baht ($442 million USD) to acquire the rights to broadcast EPL games locally. The Sport Channel HD app, created by Somsak Boonpetch, is promoted as an app that gathers all online sport channels, and is available for $29.99 USD (over ฿900 baht). It is only available in Thailand.

When CTH found out that Sport Channel was able to show EPL games on iPhones and iPads, bypassing the network and licensing that CTH invested so heavily in, the company was likely more than a little perturbed. When Sport Channel continued to consistently rank at the top of Apple’s paid apps in Thailand, and with the knowledge that Apple was skimming 30 percent off of every app purchased, CTH got aggressive and decided to tackle the problem head on.

According to lawyer Yindee Limpivet, CTH sent a letter to Apple demanding the removal of the app, which likely would have settled things quickly. Apple, allegedly, did not respond. CTH, instead of attempting to run down the app developer, has decided go for a financial score via corner kick, by filing a lawsuit in Thaland against Apple Inc and Apple South Asia (Thailand), seeking damages of ฿100 million baht, (or $3.16 million USD). The case will be heard this fall in Thailand, with the criminal case scheduled for November 18 and the civil case scheduled for December 23.

Sport Channel HD

Because the rest of the world actually cares about soccer.

According to Mr. Yindee, CTH is also going to take a run at any other individual or business who illegally shows the EPL matches, and plans to not only suspend their access to the broadcast signal without notification, but also to sue each and every one of them. Apparently it’s game on in Thailand, and anyone profiting from showing EPL games through dirty or chippy tactics should keep their head on a swivel, because a new enforcer is on the field.

But is Apple really the culprit here? Surely CTH is getting fouled by this app, but is that the fault of Cupertino? Like it or not, Apple has taken on the responsibility of keeping the App Store clean from malware or apps that show morally questionable content. However, that is not the same as ensuring that every approved app does not illegally share unlicensed content. If YouTube is profiting from users illegally sharing licensed content, or if a new song on iTunes is crafted with illegally sampled music, it seems a bit of a stretch to haul Apple into court to pay damages.

However, it does seem reasonable that, after being notified that an approved app was illegally sharing unlicensed content, Apple would take action, and not just ignore the letter. 

Either way, ฿100 million baht isn’t really a lot to Apple’s bottom line, so maybe it’ll just forfeit this match, write a check, and walk away. And maybe that is exactly what CTH is playing for.

Connect with this writer, Adrian Hoppel, on his website AdrianHoppel.com.

Law & Apple: Bad Break for Consumers

America is addicted to AMC’s Breaking Bad, a series that launched in 2008 and has seen its viewership double in the last year alone. Now in the middle of its last season, the series is one of the most hyped, watched, and talked-about cable television shows in the United States. However, something about the way AMC has cooked up this last season is causing some bad blood, and one consumer decided the best thing to do is to lawyer up and sue Apple.

Lzebnik vs. Apple

What happens when the company that creates a popular show decides to insert an 11-month break right in the middle the last season? Well, if you are Apple, or Amazon, or Sony DVD, you sell it as two separate seasons. Which causes the consumers who purchased the entire season in advance to get angry because they were working under the assumption that their purchase actually included the whole season.

Ohioan Noam Lzebnik is more than angry about this badly timed break in the series; he is seeking revenge. 

“When a consumer buys a ticket to a football game, he does not have to leave at halftime,” Lzebnick states. “When a consumer buys an opera ticket, he does not get kicked out at intermission.” For the record, sometimes he does, but he probably deserved it, and that’s a story for another time.

Mr. Lzebnik has called shenanigans on Apple, and is filing a lawsuit seeking a class action against Cupertino for false advertising under California’s consumer protection laws that would require Cupertino to refund all or part of the cost of the Season 5 pass to the people who purchased it.

The legal question will likely come down to how a season is defined, and who defines it for sale to the consumer. Apple, like Amazon and other distributors, sees these two groupings of episodes as two seasons; Apple is calling the first part “Season 5″ and the second part “The Final Season,” while Amazon is going with the unoriginal name of “Season 6″ for the second part. AMC, however, has been adamant all along that both parts are to be considered Season 5, and continues to list the episodes that way on their website.

So, clearly, Mr. Lzebnik has a legit gripe. Most people would agree that if you buy a season pass from iTunes, you can reasonably expect that it will include all episodes in that season. This is an especially reasonable assumption due to iTunes’ statement that the pass includes “every episode in that season.” On the surface, it certainly does not appear that Apple is being very nice, and Mr. Lzebnik’s case (PDF) might have a solid chance.

Tim Cook is breaking the season pass badly

I am the one who knocks.

But who is really the cause of this mess? Apple is not in the episode-planning business. They’re in the empire business. Deciding what constitutes a season seems like a decision made outside the halls of Cupertino, and more likely in the hills of Hollywood (or wherever these shows are made today). As The Verge points out, when Doctor Who splits its seasons, Apple charges for separate seasons. However, when The Walking Dead took a break for a month or so, a single season pass covered the whole gory thing. So there is some precedence of handling split seasons both ways, which suggests that ultimately this is a network, not an Apple, decision.

Perhaps it will be an interesting case and we’ll get some insight on who actually decides how to sell the episodes: the producer or the distributor. It won’t be an easy case, however, as surely Apple is not keen on refunding the great horde of Breaking Bad fans for their Season 5 pass, and Mr. Lzebnik should be prepared for a stout fight. Surely he did not expect Apple’s battle-hardened legal team to just roll over and start writing checks; if that’s true, if he doesn’t know who they are, then maybe his best course would be to tread lightly. 

No matter who is responsible for deciding to sell the last season as two separate seasons, either way the consumers are the ones getting treated badly, so here’s hoping that Mr. Lzebnik’s case has some legs and wins relief for the beleaguered fans and some clarity for how seasons are sold moving forward. It’s bad enough when your favorite show is ending, but it is even worse when you have to pay twice to watch it end. 

Connect with this writer, Adrian Hoppel, through his website adrianhoppel.com.

Law & Apple: There and Back Again: Quests for Apple's Gold Fail

Law & AppleApple’s cash hoard is well publicized. It is the stuff of legends — so much so, you’d almost expect there to be a dragon sitting on top of it, guarding it from would-be burglars. We don’t live in a world where you can feast, sing some songs, and then set off with a band of dwarves in search of long forgotten gold; we just clog up the courts with frivolous lawsuits instead. And sometimes, that dragon guarding Cupertino’s gold, more commonly known as the legal department, is more than enough to put an end to the journey of those seeking what they falsely believe to be their share of the treasure. Let’s take a look at the end of two such non-epic quests for Apple’s gold.

iTunes Antitrust Lawsuit Dismissed

In August of 2011, Stacie Somers filed a lawsuit against Apple on behalf of herself and “all other similarly situation” claiming that Apple holds a monopoly over music downloading through its iTunes stores. Allegedly, the suit stated, Apple blocked competition and charged more for music by keeping users from playing some music purchased from iTunes on devices not made by Apple. Adding insult to injury, the suit claimed, Apple kept its prices for music the same even after competition entered the market.

So, in other words, Apple sold music that was designed to work on Apple devices, and did not change their pricing when other companies began offering music that worked on other devices. If that seems like a very weak argument to you, well, the courts would agree. Twice. 

Yesterday, the U.S. Court of Appeals in San Francisco upheld a lower court’s dismissal of the case, effectively sending this lawsuit to its doom.

Smaug

Grabbing the gold is not as easy as it looks. (Warner Bros. Pictures)

Ms. Somers is no stranger to questing after Apple’s gold in court. She filed a previous lawsuit in December of 2007 against Apple, claiming antitrust violations in the way iTunes managed DRM in music sales, and the motion for class-action status in this case was denied by the court (PDF) in July of 2009. Ms. Somers then filed an amended complaint in January of 2011, again alleging antitrust violations; this case was dismissed without prejudice (PDF) by the court in June of 2011. 

Stop the madness! At some point, you have to just accept that the dragon is not going to be defeated when the same attack fails again and again, right? Or will we see Ms. Somers back in court with another lawsuit against Apple soon? The dragon will be ready.

iPhone Power Button Case Dismissed

Two iPhone users, Ross Missaghi and Charles Thompson, brought a lawsuit against Apple and AT&T last year, claiming that the power button on the iPhone was defective, that Apple knew about it, and that the faulty button represented a safety hazard. Mr. Missaghi and Mr. Thompson also claimed that AT&T and Apple formed a conspiracy to hide the defect, so that they could sell more phones in the period after the device warranty expired but before the service contracts ended.

Last week GigaOM reported that Los Angeles US District Judge Gary Feess dismissed the case (PDF), stating that Apple was under no obligation to disclose knowledge of a defect that occurs after the warranty period. Also, Judge Feess went on, the claim that a faulty power button was a safety hazard was wack. 

Or, in his own words, “Certainly being stranded in a broken down car, where there may not even be cell service, is as speculative a safety concern as being stranded with a broken phone.”

Home Button

My home button doesn’t always work, but I’m pretty sure it’s not Apple’s fault. True story.

This case is separate from a similar case we discussed in May, one brought by Debra Hilton, also claiming that Apple purposefully built the iPhone 4 with faulty power buttons that would fail just after the warranty on the device expired, forcing her and “thousands of iPhone 4 users” to allegedly pay $149 to have the device fixed; this case is still pending. We just wanted to clarify that so you didn’t get these courtroom conspiracy theories mixed up.

It’s likely that Ms. Hilton’s “wiggly button” case will see a similar fate as Mr. Missaghi’s and Mr. Thompson’s case. It takes more than a sketchy conspiracy theory to get past the dragon and grab the gold.

Everyone knows what you really need is a crafty Hobbit with a magic ring.

Find more ways to follow this writer, Adrian Hoppel, on his website.

Judge throws out case involving faulty iPhone power button

GigaOM reports that a judge in San Jose this week threw out a case alleging that Apple sold the iPhone 4 and 4S knowing full well that the devices featured a faulty power button designed to malfunction after the warranty expired.

The case was original…

Apple sued over Find my iPhone

Well this is certainly a fitting story given a recent report that Apple remains the top target for patent trolls.

GigaOM is reporting that a nonpracticing entity based out of Texas is suing Apple, alleging that services such as Find my Friends and Fin…

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