FOSS PATENTS – Samsung: Apple can claim no patent on ‘fun’ and no monopoly over ‘ease of use’

Late on Friday, Samsung made its most important filing to date in the entire dispute: its opposition to Apple’s motion for a permanent injunction against infringing Samsung products (and enhanced damages). Injunctive relief is what Apple needs to have serious competitive impact in the foreseeable future. That’s why I said this opposition brief is the most important Samsung filing in terms of a high-impact issue on which the parties’ pleadings can realistically make a major difference (unlike in the Rule 50 context, in which the hurdle for getting the jury overruled is sky-high).

Samsung’s lawyers have had almost two months (since the jury verdict) to prepare their argument against Apple’s push for a permanent injunction, and they’ve definitely made use of this time to develop and refine many business and policy arguments, some of which have the potential to complicate Apple’s pursuit of injunctive relief. There are some areas in which their positions are questionable, such as by seeking to limit the scope of the injunction to specifically-named infringing products, as opposed to an injunction covering infringements that are no more than colorably different, which is what Judge Koh’s previous injunctions did. On the question of whether injunctive relief should be granted at all, Apple faces a considerable hurdle in these post-eBay times, and Samsung’s brief also leverages the Federal Circuit’s very recent reversal of a preliminary injunction Apple won against the Galaxy Nexus in a separate California case or Judge Posner’s denial of injunctive relief to Apple a few months ago.

These are some of the key points Samsung makes in this context:

  • Samsung accuses Apple of making “an effort to stifle lawful, fair competition”. In this context, Samsung points to various comments on the case, starting with Apple co-founder Steve Wozniak’s statement that he “hates” the verdict and “do[es]n’t agree with it”.
  • The formal part of Samsung’s public interest argument downplays the weight that should be given to the public interest in intellectual property enforcement. Samsung says that “preserving rights of patent holders” is the only public interest cited by Apple, but the public interest part is mostly just an opportunity for defendants and Samsung’s public interest argument also just comes down to the idea that injunctions limit consumer choice. This here is a case in which neither side can make a particular public interest argument.
  • Samsung argues that Apple no longer practices the D’087 patent (the iPhone 3GS was allegedly the last product to practice it, and it’s not being sold anymore) and the D’305 user interface design patent, which Samsung claims requires a “missing row” of icons. Samsung also denies Apple’s continued use of the trade dress the jury deemed infringed.
  • Samsung also claims to have redesigned its products to steer clear of infringement of Apple’s patents (utility as well as design patents) and trade dress. I will address the issue of designarounds and workarounds in a separate section further below because it’s very important and requires more explanation. I’ll just say upfront that the availability of workarounds should actually lower the hurdle for an injunction.
  • The passages of Samsung’s brief that I think pose the greatest risks to Apple’s push for an injunction are the ones disputing that there is sufficient evidence for a causal nexus between the infringements identified by the jury and the irreparable harm Apple claims to suffer. Samsung was lucky with the briefing deadlines for injunctive relief. Apple had filed its motion on September 21, but about three weeks later, the Federal Circuit ruled on the Galaxy Nexus injunction, the effect of which Patently-O describes as having moved the goalposts for plaintiffs seeking to prove irreparable harm to “the next level of granularity in a way that will be difficult for patentees to prove”. Samsung now has the benefit of the Federal Circuit decision that Apple lacked when writing its motion.

    Granularity favors Samsung because that has been its strategy in this dispute for some time. Samsung wanted maximum granularity for the jury verdict form, and Judge Koh agreed almost to the full extent. Now it wants maximum granularity for any evidence of irreparable harm. Apple, however, uses what Samsung disparages as a “blunderbuss approach”, arguing with how such broad concepts as “ease of use” affect consumer choice as opposed to feature-specific evidence. In this context, Samsung makes the statement I used in the headline because it describes the underlying issue between Apple and Samsung very well: “Apple can claim no patent on ‘fun’ and no monopoly over ‘ease of use'”If a very high standard of proof is applied, Apple has a problem. It’s not only difficult but practically impossible to prove through consumer surveys that products were purchased because of certain designs or user interface elements, not because those factors aren’t important but because their impact on purchasing decisions is subconscious. Very few consumers look at individual features. Nevertheless, consumers can tell a “fun” and “easy to use” product apart from another. Also, Samsung points to a survey according to which design played a minor role in purchasing decisions, but this doesn’t mean that design isn’t a key success factor.

  • Samsung also disputes that a finding of willful copying establishes a causal nexus involving consumer demand.

Samsung’s proposal for U.S. patent enforcement boils down to a de facto compulsory licensing regime in which all patent holders in this field of technology must content themselves with royalties (obviously modest amounts of money if Samsung got its way). I’m not advocating one position or the other here. I just want to ensure that we consider the practical (smartphone- and tablet-related) consequences of the direction in which U.S. case law on patent injunctions has recently been drifting, and in which Samsung would like to go even further. But no matter whether one favors slow and soft patent enforcement, it would be mistaken to believe that it will help to end the ongoing patent disputes.

Injunctions are an important tipping point that can trigger settlements, and enable a company with hundreds (if not thousands) of patents in a given area to get enough let leverage from a few powerful ones as opposed to having to collect damages over each and every patent in their portfolio. Absent injunctive relief in the U.S., the relevant right holders will need more time, will have to sue over more patents, and will have to litigate in more jurisdictions. But there’s so much at stake that they can’t back down at any rate.

Most U.S. patent reform proposals advocate the interests of defendants. Some of them make more sense than others — I’m not going to go into detail on that. What I want to point out is that the challenges and delays Apple faces in its enforcement efforts (for example, with only one patent being enforced against HTC at this stage, after almost 32 months of suing) would, perhaps in a different political climate, give rise to calls for stronger and swifter protection. After all, justice delayed is, quite often, justice denied.

In the following two sections I want to focus on workarounds, which are one of the more important issues addressed in Samsung’s brief and in an attached declaration that focuses entirely on that subject. I’ll summarize Samsung’s descriptions of its workarounds for the three utility patents the jury found infringed, and in the final section I’ll share my observations of how the injunctive-relief analysis performed in the U.S. generally fails to take workarounds into consideration as a factor that can weigh heavily in favor of the grant of an injunction.

A closer look at Samsung’s workarounds for Apple’s multitouch patentsThe jury found that Samsung infringed three Apple multitouch software patents: the ‘381 “rubber-banding” (“overscroll bounce”) patent, the ‘915 (“pinch-to-zoom API”) patent, and the ‘163 (“tap to zoom and navigate”) patent. Samsung claims that it has workarounds in place for all three patents. But for the time being, there is no evidence in the public record that Samsung can provide the identical user benefits without infringing Apple’s patents:

  • Samsung’s workaround for the ‘381 “rubber-banding” patent is just a throwout. The blue glow is barely noticeable, and by the time a user notices it, he or she has instinctively pressed harder because the device appeared not to respond at the end of a scrollable list. The blue glow doesn’t provide even 5% of the user benefit protected by Apple’s patent. It doesn’t really solve the problem of an apparently unresponsive interface. It doesn’t infringe, but it is a degradation of the user experience.
  • Samsung has been able to preserve the key benefit of the ‘163 patent: if you have a website in your browser (and typically one that is not optimized for display on mobile phones), you can double-tap on a rectangular area (such as an article on a multi-article webpage) in order to enlarge that part of the page and move it closer to the center of the screen. That’s because the ‘163 patent is not a “tap to zoom” patent in a strict sense: it’s a “tap to zoom AND NAVIGATE” patent. The patent is only infringed if the user can subsequently tap on another item on that page in order to navigate there. The workaround code just interprets a double-tap as the user’s desire to return to the zoomed-out version of the page. This is a little bit of a detour, but only in a fairly limited number of cases where the second item the user wishes to enlarge is in reach while the first item is enlarged. Samsung’s workaround preserves well over 90% of the user benefit Apple’s patent covers, and doesn’t appear to infringe.
  • Samsung has redacted its description of how the ‘915 “pinch-to-zoom API” patent can be worked around while allegedly implementing the same gesture, still allowing users, according to a document Samsung filed on Friday, “to scroll web pages using one finger and zoom in and out of web pages using two fingers”. I never claimed that the ‘915 was a patent on pinch-to-zoom, let alone on all zoom gestures (including non-pinching gestures such as drawing circles, touching the screen with two fingers while turning it in a particular direction, or using five fingers), but I did consider it — and until I see hard evidence, I will continue to consider it — essential to pinch-to-zoom, i.e., inevitably infringed by any reasonable implementation of that particular gesture.
    All that Samsung now says is that a step described as “quintessential” by an Apple expert, the distinction between a two-finger touch and a single-finger touch, is no longer in the code. I don’t doubt that Samsung has thrown out a straightforward one-or-two-fingers distinction. But again, it doesn’t tell the general public what it’s doing now in order to tell a two-finger pinching gesture apart from a single-finger scrolling gesture.Theoretically, Samsung’s workaround code could analyze the imaginary lines that the user draws on the screen. If there’s a scrolling gesture, there’s one line. If it’s a pinching gesture, there will be two lines moving toward each other or away from each other. However, if the analysis of those lines shows that there are two lines instead of one, it’s just another way of figuring out that the user is using a minimum of two fingers.

In its opposition to Apple’s request for an injunction, Samsung refers to what Judge Posner also feared might happen in the Chicago dispute between Apple and Motorola: enforcement disputes over whether a workaround really is a workaround in a legal sense, or still constitutes an infringement. Samsung fears that the risk of being held in contempt would put it under enormous pressure. I understand that concern. But if there’s a disagreement over whether a workaround does or does not infringe, there will be a dispute with or without injunctive relief. If the court doesn’t grant Apple an injunction over a given patent, it will have to determine ongoing royalties. Apple would also start an enforcement dispute in order to collect such royalties on a technique that Samsung labels a workaround but that Apple deems an infringement. This is another example of how Samsung’s proposals won’t really result in patent peace: their conspicuous design goal is to let Samsung get away with what it’s done and with what it intends to do in the future.

An enforcement dispute over the ‘381 “rubber-banding” patent would be ridiculous, and for the ‘163 “tap to zoom and navigate” patent, I doubt very strongly, for now, that Apple can come up with a plausible infringement theory. But what Samsung does and does not say in public about the ‘915 “pinch-to-zoom API” workaround suggests to me that an enforcement dispute over this one is at least somewhat likely.

The primary deficiency of U.S. injunctive-relief analysis in these smartphone cases is that workarounds benefit only defendants instead of cutting both ways

Living in a country in which “infringement” and “injunction” are unfortunately synonyms, I really like the fact that injunctive relief is a matter of equity in the United States (and various other jurisdictions). In fact, I believe the ITC should also be required to perform an eBay-style analysis of irreparable harm and the balance of equities, and give more consideration to the public interest (in the limited number of cases in which it actually is appropriate).

But it’s not just about doing the right thing. It’s also about doing it right. Frankly, I think there’s a risk of the injunctive-relief analysis in the U.S. missing almost completely the point of workarounds. Balance of equities means that all valid arguments must be considered on both sides, and I don’t see workarounds being given the right level of attention and leading to the appropriate conclusions.

Defendants seeking to avoid U.S. injunctions against smartphones or tablet computers argue that a patent they were or might be found to infringe covers only a minor feature out of what may be hundreds of thousands of theoretically patentable inventions in a modern-day smartphone or tablet computer. Courts are increasingly willing to accept or even endorse this argument. One sentence comes up again and again and, with an ellipsis, also shows up in Samsung’s filing. Here’s the complete sentence I mean, which is from a concurring opinion of four Supreme Court justices in the eBay case (but not a position adopted by a majority of the Supreme Court):

“When the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest.”

What Justice Kennedy, with the support of three other justices, said here makes perfect sense on its own. But what’s increasingly happening is that the second part of the subclause (the one about undue leverage) is ignored or omitted, such as by Samsung. The fact that something is only “a small component” is not sufficient to deny injunctive relief. There must also be some potential for abusive behavior.

I see a risk that the discussion in some of these U.S. disputes applies different standards to the harm caused to a patent holder by having to tolerate continued infringement and the harm caused to an infringer by being enjoined. For the infringer’s situation, the implicit or explicit assumption is, most of the time, that an entire product is banned. But the legitimacy of a patent holder’s request for injunctive relief is called into question by the aforementioned overreaching application of the “small component” logic.

If Samsung hasn’t been infringing the ‘381 rubber-banding patent for roughly a year (which is consistent with my observations as a Samsung customer), it makes no sense to analyze harm under the false premise that an injunction will stop Samsung from selling even one smartphone. If Samsung has a pretty plausible workaround with minor impact on the user experience in place for the ‘163 tap-to-zoom-and-navigate patent, why should Apple be denied injunctive relief is Samsung has a non-infringing alternative?

Why should Apple have to prove, as Samsung demands and the Federal Circuit generally requires now, on a feature-specific basis a causal nexus, showing not only that certain features drive demand for Apple’s products but that they matter a great deal to Samsung’s customers, if the impact assessment of a potential injunction is not feature-specific at all but assumes the removal of an entire product from the market?

For standard-essential patents there can be no doubt that even a patent on a small component will give patent holders undue leverage in negotiations. Judge Posner accurately noted that a phone that can’t implement UMTS is not a phone. But where I don’t see his point is when he said at a hearing that the effects of the injunction Apple wanted to win against Motorola would be “catastrophic”, considering that Judge Posner’s ruling also discussed workarounds. For Apple’s realtime API patent, I might agree with Judge Posner: it does look like a patent that does disproportionate damage to a party enjoined from implementing it. But I don’t see multi-touch gesture patents (unless they are really foundational in terms of multitouch-essential) being comparable to the realtime API patent.

In that Chicago proceeding, Apple’s lawyers made a very good proposal: they said that Motorola should be given three months to modify its products accordingly. Such transitional periods (which are common at the ITC) are a way to solve the problem without denying injunctive relief only because of delays. Even if it takes only a negligible amount of engineering time, it will take time for these devices to be manufactured abroad and then shipped to the United States, and finally to customers. But even Apple doesn’t always insist that the impact of injunctions be analyzed on a feature-specific basis taking workarounds into consideration. In the Galaxy Tab 10.1 injunction dissolution context, Apple argued that the device was illegal anyway because, whether or not it infringes the tablet design patent over which the injunction had been granted, it infringes three multitouch software patents. The argument didn’t get any traction with the court, and I did not like it at all. I think Apple should fight very hard for a feature-specific analysis of harm caused to infringers instead of adopting the same double standards that others are promoting or even endorsing.

It’s admittedly difficult for a patent holder to use workarounds as an argument for an injunction without prejudice to its positions in a future enforcement dispute. If you argue that a certain workaround is legal, you can’t say the opposite later. And if you argue, in an effort to win an injunction, that implemention A steers clear of infringement, your opponent may later defend implementation B against your contempt motion by saying that it may not be identical to A but your approval of implementation A can nevertheless have a bearing on at least part of the infringement analysis for implementation B (for example, with respect to certain claim limitations).

This is where plaintiffs have to make a choice. If they adopt and reinforce the analytical inconsistency I’m addressing here, they certainly keep all options open for aggressive interpretations of the scope of their patents in a future enforcement proceeding. But Apple and others should think hard about optimizing for the grant of an injunction, given that this is increasingly difficult, especially now after the Federal Circuit’s Galaxy Nexus decision.

For example, it should be a no-brainer for Apple to concede that the blue glow doesn’t infringe the ‘381 patent. No matter how you twist and turn the ‘381 patent, there’s no way anyone in his right mind would deem it infringed by the blue glow. And the blue glow is objectively inferior to rubber-banding, so if Apple ensured that Samsung can’t infringe this patent in the future, it would achieve some meaningful differentiation. With the ‘163 “tap to zoom and navigate” patent, a claim of continued infringement would be a long shot (and some would consider it frivolous). Apple could also accept this workaround as a non-infringing alternative. For the ‘915 “pinch-to-zoom API” patent, Apple may have to keep all options open for a possible enforcement dispute, and accepting what Samsung calls a workaround wouldn’t make sense for Apple because users wouldn’t notice any difference between Apple’s and Samsung’s products with respect to pinch to zoom. But Apple could tell the court that Samsung could come up with other zooming gestures. In fact, Samsung products already provide an alternative I mentioned further above (place two fingers on the screen and tilt the device with your hands).

The ITC gave HTC additional time (beyond the usual two months for the Presidential Review period) to modify its Android devices in order to steer clear of infringement of Apple’s ‘647 “data tapping” patent. The idea of transitional periods is a good one. But in this case, HTC’s CEO said a day or two later that they already had a workaround in place, which shows that the ITC was overly generous. Any technical expert could have told the ITC that removal of the feature would be possible with a few days of work, and there comes a point in a dispute where an infringer should really be expected to start working on a workaround (in that HTC case at the ITC, the latest point at which HTC could have been reasonably expected to develop a workaround was after the initial determination in July 2011, which came down four months prior to the final decision). In other cases, even longer transitional periods may be warranted. But I have yet to see a U.S. smartphone/tablet patent lawsuit in which the ITC or a court really conducts a detailed analysis of how much effort it will take the infringer to develop a workaround and how much more time is needed for other commercial reasons. Most of the effort just goes into whether the patent holder is harmed or not.

Without a doubt, Apple should not get to force Samsung out of the U.S. market over minor features. But Apple’s desire to differentiate its products must not be equated with thermonuclear destruction.
The number of patented inventions in a smartphone or tablet computer won’t go down. If anything, it will go up in the years ahead. If the “small component” logic, coupled with the premise of the removal of an entire product, continues to be applied in the way in which Samsung would like it to be applied, Apple’s pursuit of injunctive relief will suffer even more setbacks of the Galaxy Nexus kind. In fact, if Apple is going to be required to show a causal nexus on a feature-by-feature basis, but if it can’t or doesn’t want to explain on a feature-specific basis how little it’s actually asking for, it may not accomplish its strategic goals in U.S. courts. I’m convinced that Apple will get better results if it turns Samsung’s workaround arguments against its rival, even if this weakens other arguments in favor of injunctive relief and may adversely affect Apple’s damages claims.

“You say it’s only a minor feature? We don’t think so, but fine with us: if you think it’s small, then just work around it. Oh wait, you’ve already done that. So why do you need a license to infringe? What’s your agenda? If an injunction won’t really hurt you, why shouldn’t we just use our patent as the time-limited monopoly that the Constitution envisioned it to be?”

I do realize, however, that it’s a very tough choice for U.S. patent holders to pursue a very injunction-centric strategy. Damages don’t solve the problem quickly, but at least they’re available. Pushing primarily or exclusively (in the latter case, you wouldn’t even need a jury) for injunctions is almost an all-or-nothing strategy. But I see signs of Apple sometimes being willing to set this kind of priority. For example, Apple offered to drop its damages claims over the patents it temporarily withdrew from this litigation and may reassert anytime, such as after Judge Koh’s final ruling on the summer trial issues.

From: http://www.fosspatents.com

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